WT/DS495/R  
 
22 February 2018  
(18-0958) Page: 1/214 
  Original: English  
 
  
KOREA – IMPORT BANS,  AND TESTING AND CER TIFICATION  
REQUIREMENTS FOR RAD IONUCLIDES  
REPORT  OF THE PANEL  
 
  WT/DS495/R  
 
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  TABLE OF CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ................................ ........  21 
1.1   Complaint by Japan  ................................ ................................ ................................ ....21 
1.2   Panel establishment and composition  ................................ ................................ ............ 21 
1.3   Panel proceedings  ................................ ................................ ................................ .......21 
1.3.1    General  ................................ ................................ ................................ .................. 21 
1.3.2    Request for enhanced third -party rights  ................................ ................................ .....23 
1.3.3    Consultati on with experts and international organizations  ................................ ............. 23 
1.3.3.1    Panel's decision to consult experts  ................................ ................................ .......... 23 
1.3.3.2    Panel's selection of  individual experts  ................................ ................................ ......24 
1.3.3.3    Panel's questions to the individual experts and the international organizations  ............. 27 
1.3.3.4    Panel meeting with the experts and the parties  ................................ ......................... 28 
2   FACTUAL ASPECTS ................................ ................................ ................................ ..... 28 
2.1   Radioactive contamination of food  ................................ ................................ ................ 28 
2.2   The health risks from exposure to ionizing radiation  ................................ ........................ 30 
2.3   International response to radioactive contamination  ................................ ....................... 32 
2.3.1    The Codex Alimentarius Commission (Codex)  ................................ .............................. 33 
2.3.1.1    Codex guideline levels for radionuclides in foods contaminated following a 
nuclear or radiol ogical  emergency in CODEX STAN 193 -1995 ................................ .................. 33 
2.3.1.2    Potential revision of the Codex Radionuclide GLs  ................................ ....................... 36 
2.3.2    The United Nation s Scientific Committee on the Effects of Atomic Radiation 
(UNSCEAR)  ................................ ................................ ................................ ....................... 37 
2.3.3    The International Commission on Radiological Protection (ICRP)  ................................ ....37 
2.3.4    The International Atomic Energy Agency (IAEA)  ................................ .......................... 38 
2.4   The Fukushima Dai -ichi Nuclear Power Plant ( FDNPP ) accident  ................................ ......... 39 
2.5   Radioactive contamination fr om the FDNPP  ................................ ................................ ....41 
2.5.1    The initial release  ................................ ................................ ................................ ....41 
2.5.1.1    Releases to the atmosphere  ................................ ................................ ................... 42 
2.5.1.2    Releases to the ocean  ................................ ................................ ............................ 43 
2.5.1.3    Dispersion  ................................ ................................ ................................ ............ 43 
2.5.1. 3.1   Atmospheric dispersion  ................................ ................................ ....................... 44 
2.5.1.3.2    Ocean dispersion  ................................ ................................ ................................ 44 
2.5.2    Releases after the initial accident  ................................ ................................ ............... 45 
2.5.3    Radioactive material still in the reactor  ................................ ................................ .......46 
2.6   Japan's response to the effect of the FNDPP accident on food  ................................ ........... 47 
2.7   Korea's response to the FDNPP accident  ................................ ................................ ........ 53 
2.7.1    Pre-export certification requirements  ................................ ................................ ......... 54 
2.7.2    At-the-border testing for every consignment  ................................ ............................... 55 
2.7.3    Testing for additional radionuclides  ................................ ................................ ............ 56 
2.7.4    Expanded testin g for additional radionuclides  ................................ .............................. 57 WT/DS495/R  
 
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  2.7.5    Caesium -134 and caesium -137 threshold levels  ................................ .......................... 57 
2.7.6    Product -specific import bans  ................................ ................................ ..................... 58 
2.7.7    Blanket import ban  ................................ ................................ ................................ ..60 
2.8   The measures Japan challenges ................................ ................................ .................... 62 
3   PARTIES' REQUESTS F OR FINDINGS AND RECO MMENDATIONS  ................................  64 
4   ARGUMENTS OF THE PA RTIES  ................................ ................................ ...................  64 
5   ARGUMENTS OF THE TH IRD PARTIES  ................................ ................................ ........  65 
6   INTERIM REVIEW  ................................ ................................ ................................ ...... 65 
6.1   The purpose and scope of interim review  ................................ ................................ .......65 
6.2   Descriptive part  ................................ ................................ ................................ .......... 66 
6.3   Operation of Korea's testing requirements  ................................ ................................ .....68 
6.4   Provisional measures  ................................ ................................ ................................ ..69 
6.5   Whether Korea's measures are more trade restrictive than required  ................................ .70 
6.6   Non-discrimination ................................ ................................ ................................ ......74 
6.7   Control, inspection and approval procedures  ................................ ................................ ..74 
6.8   Transparency obligations  ................................ ................................ ............................. 75 
7   FINDINGS  ................................ ................................ ................................ .................  76 
7.1   Standard of review  ................................ ................................ ................................ .....76 
7.2   Burden of proof  ................................ ................................ ................................ .......... 78 
7.3   Order of analysis  ................................ ................................ ................................ ........ 79 
7.4   Whether Korea's measures are SPS measures  ................................ ................................ 80 
7.4.1    The objective(s) of the measures  ................................ ................................ ............... 81 
7.4.2    Whether the measures directly or indirectly affect international trade  ............................. 82 
7.4.3    Conclusion  ................................ ................................ ................................ .............. 82 
7.5   Operation of Korea's testing requirements  ................................ ................................ .....82 
7.5.1    Pre-market testing  ................................ ................................ ................................ ...83 
7.5.2    Point-of-sale testing  ................................ ................................ ................................ .86 
7.5.3    Levels required to trigger additional testing  ................................ ................................ 87 
7.5.4    The additional radionuclides tested for by the Korean authorities  ................................ ...88 
7.5.5    Location of additional testing  ................................ ................................ ..................... 89 
7.6   Provisional measures  ................................ ................................ ................................ ..92 
7.6.1   Burden of proof under Article 5.7  ................................ ................................ ............... 92 
7.6.2    Four requirements for the applicability of Article 5.7 ................................ ..................... 94 
7.7   Whether Korea's  measures are more trade -restrictive than required  ...............................  107 
7.7.1    Whether testing for caesium with a 100 Bq/kg limit is "another measure"  .....................  109 
7.7.2    The temporal scope of Japan's claims  ................................ ................................ ....... 110 
7.7.3    Technical and economic feasibility  ................................ ................................ ............  114 
7.7.4    Whether Japan's p roposed alternative measure is significantly less trade 
restrictive than Korea's measures  ................................ ................................ ......................  115 
7.7.5    Korea's ALOP  ................................ ................................ ................................ ........  117 
7.7.6    Japan's proposed alternative measure  ................................ ................................ ...... 120 WT/DS495/R  
 
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  7.7.6.1    Contaminants at issue  ................................ ................................ .........................  122 
7.7.6.2    Levels of contaminants in Japanese food produc ts ................................ ...................  128 
7.7.6.3    Extent of dietary exposure  ................................ ................................ ...................  143 
7.7.6.4    Risk characterization  ................................ ................................ ...........................  148 
7.7.6.5    The level of protection achieved by Japan's proposed alternative measure  .................  149 
7.7.7    Comp arison of the level of protection achieved by Japan's alternative measure and  
Korea's ALOP  ................................ ................................ ................................ ...................  150 
7.7.8    Conclusion  ................................ ................................ ................................ ............  151 
7.8   Non-discrimination ................................ ................................ ................................ .... 151 
7.8.1    Whether identical or similar conditions prevail  ................................ ...........................  152 
7.8.1.1    Interpretation  ................................ ................................ ................................ ..... 152 
7.8.1.2   What are the relevant condit ions ................................ ................................ ...........  157 
7.8.1.3    Whether conditions are similar in food from Japan and of other origins  ......................  158 
7.8.2    Whether Korea's measures dis criminate between Japanese products and those of 
other Members  ................................ ................................ ................................ ................  169 
7.8.2.1    Import bans  ................................ ................................ ................................ ....... 169 
7.8.2.2    Additional testing requirem ents ................................ ................................ ............  170 
7.8.3    Whether the discrimination is arbitrary or unjustifiable  ................................ ...............  171 
7.8.3.1    Import bans  ................................ ................................ ................................ ....... 173 
7.8.3.2    Additional testing requirements  ................................ ................................ ............  176 
7.8.3.3    Whether Korea's import bans and the additional testing requirements constitute 
a disguised restricti on on international trade  ................................ ................................ ....... 177 
7.8.4    Conclusion  ................................ ................................ ................................ ............  178 
7.9   Control, inspection and approval procedures  ................................ ................................  178 
7.9.1    Whether Korea's additional testing requirements fall within the sc ope of Article 8 
and Annex C ................................ ................................ ................................ ....................  179 
7.9.1.1    Any procedure  ................................ ................................ ................................ .... 179 
7.9.1.2    To check and ensure the fulfilment of sanitary or phytosanitary measures  .................  181 
7.9.1.3    Whether Korea's additional testing requirements are  procedures to check and 
ensure the fulfilment of SPS measures within the meaning of Article 8 and Annex C  .................  182 
7.9.2    Undertaken and completed in no less favourable manner  ................................ ............  183 
7.9.2.1    Likeness analysis  ................................ ................................ ................................  184 
7.9.2.1.1    Whether the measures distinguish solely based on origin  ................................ ...... 186 
7.9.2.1.2    A traditional likeness analysis  ................................ ................................ ............  188 
7.9.3    Information requirements  ................................ ................................ .......................  190 
7.9.4    Requirements for  control, inspection and approval of individual specimens  ...................  190 
7.9.5    Criteria for the siting of facilities and the selection of samples  ................................ ..... 192 
7.9.5.1    Does Annex C(1)(g) impose a positive obligation?  ................................ ...................  192 
7.9.5.2    Whether Korea's additional testing requirements use the same criteria for siting 
of facilities  ................................ ................................ ................................ ......................  194 
7.9.5.3    Whether the additional testing requirements use the same criteria for selection 
of samples  ................................ ................................ ................................ ......................  194 
7.9.6    Conclusion under Article 8 and Annex C  ................................ ................................ .... 196 WT/DS495/R  
 
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  7.10   Transparency obligations  ................................ ................................ .........................  197 
7.10.1    Whether Korea's measures are SPS regulations within the meaning of An nex B  ...........  198 
7.10.1.1    Publish in such a manner as to enable interested Members to become 
acquainted with them  ................................ ................................ ................................ ....... 199 
7.10.2    Did Kore a publish its SPS regulations in a manner that allows interested 
Members to become acquainted with them?  ................................ ................................ ........  202 
7.10.2.1    Import bans  ................................ ................................ ................................ ..... 202 
7.10.2.2    Additional testing requirements  ................................ ................................ ...........  206 
7.10.2.3    Conclusion on Article 7 and Annex B(1)  ................................ ................................  209 
7.10.3    Providing answ ers to all reasonable questions and relevant documents  .......................  209 
7.10.3.1    Japan's 24 June 2014 request  ................................ ................................ .............  210 
7.10.3.2    Japan's 13 Novem ber 2014 request  ................................ ................................ ..... 212 
7.10.3.3    Conclusion on Article 7 and Annex B(3)  ................................ ................................  213 
8   FINDINGS AND RECOMM ENDATION(S)  ................................ ................................ ... 213  
 
 WT/DS495/R  
 
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  LIST OF ANNEXES  
ANNEX A  
WORKING PROCEDURES O F THE PANEL  
Contents  Page  
Annex  A-1 Adopted Working Procedures of the Panel  A-2 
Annex  A-2 Panel Working Procedures for Consultations with Experts  A-7 
ANNEX B  
ARGUMENTS OF THE PAR TIES 
Content s Page  
Annex  B-1 Integrated executive summary of the arguments of Japan  B-2 
Annex  B-2 Integrated executive summary of the arguments of Korea  B-28 
ANNEX C  
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the argumen ts of Brazil  C-2 
Annex  C-2 Integrated executive summary of the arguments of Canada  C-3 
Annex  C-3 Integrated executive summary of the arguments of the European Union  C-7 
Annex C -4 Executive summary of the arguments of New Zealand  C-11 
Annex C -5 Executi ve summary of the arguments Norway  C-14 
Annex C -6 Executive summary of the arguments of the United States  C-18 
ANNEX D  
CERTAIN PROCEDURAL R ULINGS MADE BY THE P ANEL 
Contents  Page  
Annex D -1 Decision of Panel on request for enhanced third -party rights  D-2 
Annex D -2 Decision of Panel on selection of experts  D-5 
Annex D -3 Decision on redacting submissions to be sent to experts  D-8 
Annex D -4 Decision of Panel on request to comment on exhibits  D-10 WT/DS495/R  
 
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  CASES CITED IN THIS REPORT  
Short title  Full case title and  citation  
Argentina – Financial Services  Appellate Body Report, Argentina – Measures Relating to Trade in Goods and 
Services , WT/DS453/AB/R  and Add.1,  adopted 9 May 2016  
Argentina – Hides and Leather  Panel Report, Argentina – Measures Affecting the Export of Bovine Hides and 
the Import of Finished Leather , WT/DS155/R  and Corr.1 , adopted 16 
February 2001, DSR 2001:V, p. 1779  
Argenti na – Import Meas ures Panel Reports, Argentina – Measures Affecting the Importation of Goods , 
WT/DS438/R  and Add.1 / WT/DS444/R  and Add.1 / WT/DS445/R  and Add.1, 
adopted 26 January 2015, as modified (WT/DS438/R) and u pheld 
(WT/DS444/R / WT/DS 445/R) by Appellate Body Reports WT/DS438/AB/R / 
WT/DS444/AB/R / WT/DS445/AB/R  
Australia – Apples  Appellate Body Report, Australia – Measures Affecting the Importation of 
Apples from New Zealand , WT/DS367/AB/R , adopted 17 December 2010, 
DSR 2010:V, p. 2175  
Australia – Apples  Panel Report, Australia – Measures Affecting the I mportation of Apples from 
New Zealand , WT/DS367/R , adopted 17 December 2010,  as modified by 
Appellate Body Report WT/DS367/AB/R, DSR 2010:VI, p. 2371  
Australia – Salmon  Appellate Body Report, Australia – Measures Affecting Importation of 
Salmon , WT/DS18/AB/R , adopted 6 November 1998, DSR 1998:VIII, p. 
3327 
Australia – Salmon  Panel Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/R  and Corr.1, adopted 6 November 1998, as modified by Appellate 
Body Report W T/DS18/AB/R, DSR 1998:VIII, p. 3407  
Australia – Salmon (Article 
21.5 – Canada)  Panel Report, Australia – Measures Affecting Importation of Salmon – 
Recourse to Article 21.5  of the DSU by Canada , WT/DS18/RW , adopted 20 
March 2000, DSR 2000:IV, p. 2031  
Brazil – Retreaded Tyres  Appellate Body Report, Brazil – Measures Affecting Imp orts of Retreaded 
Tyres , WT/DS332/AB/R , adopted 17 December 2007, DSR 200 7:IV, p. 1527  
Brazil – Retreaded Tyres  Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres , 
WT/DS332/R , adopted 17 December 2007, as modified by Appellate Body 
Report WT/ DS332/AB/R, DSR 2007:V, p. 1649  
Canada – Aircraft  Appellate Body Report, Canada – Measures Affecting the Export of Civilian 
Aircraft , WT/DS70/AB/R , adopted 20 August 1999, DSR 1999:III, p. 1377  
Canada – Autos  Panel R eport, Canada – Certain Measures Affecting the Automotive Industry , 
WT/DS139/ R, WT/DS142/R , adopted 19 June 2000, as modified by Appellate 
Body Report W T/DS139/AB/R, WT/DS142/AB/R, DSR 2000:VII, p. 3043  
Canada – Continued 
Suspension  Appellate Body Report, Canada – Continued Suspension of Obligations in the 
EC – Hormones Dispute , WT/DS321/AB/R , adopted 14 November 2008, DSR 
2008:XIV, p. 5373  
Canada – Dairy (Article 21.5 – 
New Zealand and US)  Panel Report, Canada – Measures Af fecting the Importation of Milk and the 
Exportation of Dairy Products – Recourse to Article 21.5 of the DSU by New 
Zealand and the United States , WT/DS103/RW , WT/DS113/RW , adopted 18 
December 2001, as reversed by Appellate  Body Report WT/DS103/AB/RW, 
WT/DS113/AB/RW, DSR 2001:XIII, p. 6865  
Canada – Dairy (Article 21.5 – 
New Zealand and US II)  Appellate Body Report, Canada – Measures Affecting the Import ation of Milk 
and the Exportation of Dairy Products – Second Recourse to  Article 21.5 of 
the DSU by New Zealand and the United States , WT/DS103 /AB/RW2 , 
WT/DS113/AB/RW2 , adopted 17 January 2003, DSR 2003:I, p. 213  
Canada – Periodicals  Appellate Body Report, Canada – Certain Measures Concerning Periodicals , 
WT/DS31/AB/R , adopted 30 July 1997, DSR 1997:I, p. 449  
Canada – Renewable Energy / 
Canada – Feed-in Tariff 
Program  Appellate Body Reports, Canada – Certain Measur es Affecting the Renewable 
Energy Generation Sector / Canada – Measures Relating to the Feed -in Tariff 
Program , WT/DS412/AB/R  / WT/DS426/AB/R , adopted 24 May 2013, DSR 
2013:I, p. 7  
Chile – Price Band System  Appella te Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R , adopted 23 
October 2002, DSR 2002:VIII, p. 3045 (Corr.1, DS R 2006:XII, p. 5473)  WT/DS495/R  
 
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  Short title  Full case title and  citation  
Chile – Price Band System  Panel Report, Chile – Price Band System and Safeguard Measures Relating to 
Certain Agricultural Products , WT/DS207/R , adopted 23 October 2002, as 
modified by Appellate Body Report WT/DS207AB/R, DSR 2002:VIII, p. 3127  
China – Broiler Products  Panel Report, China − Anti-Dumping and Countervailing Duty Measures on 
Broiler Products from the United States , WT/DS427/R  and Add.1, adopted 25 
September 2013, DSR 2013:IV, p. 1041  
China – GOES  Appellate Body Report, China – Countervailing and Anti -Dumping Duties on 
Grain Oriented Flat -Rolled Electrical Steel from the United States , 
WT/DS414/AB/R , adopted 16 November 2012, DSR 2012:XII, p. 6251  
China – Intellectual Pro perty 
Rights  Panel Report, China – Measures Affecting the Protection and Enforcement of 
Intellectual Property Rights , WT/DS362/R , adopted 20 March 2009, DSR 
2009:V, p. 20 97 
China – Publications a nd 
Audiovisual Products  Panel Report, China – Measures Affecting Trading Rights and Distribution 
Services for Certain Publications and Audiovisual Entertainment Products , 
WT/DS363/R  and Corr.1, adopted 19 January 2010, as modified by Appellate 
Body Report WT/DS363/AB/R, DSR 2010:II, p. 261  
China – Rare Earths  Panel Reports, China – Measures Related to the Exportation of Rare Earths, 
Tungsten, and Molybdenum , WT/DS431/R  and Add.1 / WT/DS432/R  and 
Add.1 / WT/DS433/R  and Add.1, adopted 29 August 2014, upheld by 
Appellate Body Reports WT/DS431/AB/R / WT /DS432/AB/R / 
WT/DS433/AB/R, DSR 2014:IV, p. 1127  
China – Raw Materials  Appellate Body Reports, China – Measures Related to the Exportation of 
Various Raw Materials , WT/DS394/AB/R  / WT/DS395/AB/R  / 
WT/DS398/AB/R , adopted 22 February 2012, DSR 2012:VII, p. 3295  
China – Raw Materials  Panel Reports, China – Measures Related to the Exportation of Various Raw 
Materials , WT/DS394/R , Add.1 and Corr.1 / WT/DS395/R , Add.1 and Corr.1 / 
WT/DS398/R , Add.1 and Corr.1, adopted 22 February 2012, as modified by 
Appellate Body Reports WT/DS394/AB/R / WT/DS395/AB /R / 
WT/DS398/AB/R, DSR 2012:VII, p. 3501  
EC – Approval and Marketing of 
Biotech Products  Panel Reports, European  Communities – Measures Affecting the Approval 
and Marketing of Biotech Products , WT/DS291/R , Add.1 to Add.9 and Corr.1 
/ WT/DS292/R , Add.1 to Add.9 a nd Corr.1 / WT/DS293/R , Add.1 to Add.9 
and Corr.1, adopted 21 November 2006 , DSR 2006:III, p. 847  
EC – Asbestos  Appellate Body Report, European Communities – Measures Affecting 
Asbestos and Asbestos -Containing Products , WT/DS135/AB/R , adopted 5 
April 2001, DSR 20 01:VII, p. 3243  
EC – Bananas III  Appellate Body Report, European Communities – Regime for the 
Importation, Sale and Distribution of Bananas , WT/DS27/AB/R , adopted 25 
September 1997, DSR 1997:II, p. 591  
EC – Banan as III (Guatemala 
and Honduras)  Panel Report, European Communities – Regime for the Importation, Sale and 
Distribution of Bananas, Complaint by Guatemala and Honduras , 
WT/DS27/R/G TM, WT/DS27/R/HND , adopted 25 September 1997, as 
modified by Appellate Bo dy Report WT/DS27/AB/R, DSR 1997:II, p. 695  
EC – Bed Linen  
(Article  21.5 – India)  Panel Report, European Communities – Anti-Dumping Duties on Import s of 
Cotton -Type Bed Linen from India – Recourse to Article  21.5 of the DSU  by 
India, WT/DS141/RW , adopted 24 April 2003, as modified by Appellate Body 
Report WT/DS141/AB/RW, DSR 20 03:IV, p.  1269 
EC – Export Subsidies on Sugar 
(Australia)  Panel Report, European Communities – Export Subsidies on Sugar, 
Complaint by Australia , WT/DS265/R , adopted 19 May 2005, as modified by 
Appellate Body Report WT/DS265 /AB/R, WT/DS266/AB/R, WT/DS283/AB/R, 
DSR 2005:XIII, p. 6499  
EC – Export Subsidies on Sugar 
(Brazil)  Panel Report, European Communities – Export Subsidies on Sugar, 
Complaint by Brazil , WT/DS266/R , adopted 19 May 2005, as modified by 
Appellate Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, 
DSR 2005:XIV, p. 6793  WT/DS495/R  
 
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  Short title  Full case title and  citation  
EC – Export Subsidies on Sugar 
(Thailand)  Panel Report, European Communities – Export Subsidies on Sugar, 
Complaint by Thailand , WT/DS283/R , adopted 19 May 2005, as modified by 
Appellate Body Report WT/DS265 /AB/R, WT/DS266/AB/R, WT/DS283/AB/R, 
DSR 2005:XIV, p. 7071  
EC – Hormones  Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R , WT/DS48/AB/R , adopted 13 February 1998, 
DSR 1998:I, p. 135  
EC – Hormones (Canada)  Panel Report, EC Measures Conc erning Meat and Meat Pr oducts (Hormones), 
Complaint by Canada , WT/DS48/R/C AN, adopted 13 Februar y 1998, as 
modified by Appellate Body Report WT/DS26/AB/R, WT/DS48/AB/R, DSR 
1998:II, p. 235  
EC – Hormones (US)  Panel Report, EC Measures Concerning Meat and Meat Products (Hormones), 
Complaint by the United States , WT/DS26/R/USA , adopted 13 February 
1998, as modified by Appellate Body Report WT/DS26/AB/ R, 
WT/DS48/AB/R, DSR 19 98:III, p. 699  
EC – IT Products  Panel Reports, European Communities and its member States – Tariff 
Treatment of Certain Information Technology Products , WT/DS375/R  / 
WT/DS376/R  / WT/DS377/R , adopted  21 September 2010, DSR 2010:III, p. 
933 
EC and certain member States 
– Large Civil Aircraft  Panel Report, European Communities and Certain Member States – Measures 
Affecting Trade in Large Civil Aircraft , WT/DS316/R , adopted 1 June 2011, as  
modified by Appellate Body Report, WT/DS316/AB/R, DSR 2011:II, p. 685  
EC – Sardines  Appellate Body Report, European Communities – Trade Description of 
Sardines , WT/DS231/AB/R , adopted 23 October 2002, DSR 2002:VIII, p. 
3359 
EC – Seal Products  Appellate Body Reports, European Communities – Measures Prohibiting the 
Importation  and Marketing of Seal Products , WT/DS400/AB/R  / 
WT/DS401/AB/R , adopted 18 June 2014, DSR 2014:I, p. 7  
EC – Seal Products  Panel Reports, European Communities – Measures Prohibiting the 
Importation and Marketing of Seal Products , WT/DS400/R  and Add.1 / 
WT/DS401/R  and Add.1 , adopted 18 June 2014, as modified by Appellate 
Body Reports WT/DS400/AB/R / WT/DS401/AB/R, DSR 2014:II, p. 3 65 
EC – Selected Customs Matters  Appellate Body Report, European Communities – Selected Customs Matters , 
WT/DS315/AB/R , adopted 11 December 2006, DSR 2006:IX, p. 3791  
EC – Tariff Preferences  Appellate Body Report, European Communities – Conditions for the Granting 
of Tariff Preferences to Developing Countries , WT/DS246/AB/R , adopted 20 
April 2004, DSR 2004:III, p. 925  
EC – Tariff Preferences  Panel Report, European Communities – Conditions for the Granting of Tariff 
Preferences to Developing Countries , WT/DS246/R , adopted 20 April 2004, 
as modified by Appellate Body Report WT/DS246/AB/R, DSR 2004:III, p. 
1009 
EC and certain member States 
– Large Civil Aircraft  Panel Report, European Communities and Certain Member States – Measures 
Affecting Trade in Large Civil Aircraft , WT/DS316/R , adopted 1 Jun e 2011, as 
modified by Appellate Body Report, WT/DS31 6/AB/R, DSR 2011:II, p. 685  
EC – Trademarks and 
Geographical Indications  Panel Reports,  European Communities – Protection of Trademarks and 
Geographical Indications for Agricultural Products and Foodstu ffs, 
WT/DS290/R (Australia)  / WT/DS174/R (US), adopte d 20 April 2005, DSR 
2005:VIII, p. 3499 / DSR 2005: X, p. 4603 
Guatemala – Cement II  Panel Report, Guatemala – Definitive Anti -Dumping Measures on Grey 
Portland Cement from Mexico , WT/DS156/R , adopted 17 November 2000, 
DSR 2000:XI, p. 5295  
India – Agricultural Products  Appella te Body Report, India – Measures Concerning the Impor tation of 
Certain Agricultural Products , WT/DS430/AB/R , adopted 19 June 2015  
India – Agricultural Products  Panel Report, India – Measures Concerning the Importation of Certain 
Agricultural Products , WT/DS430/R  and Add.1, adopted 19 June 2015, as 
modified by Appellate Body Rep ort WT/DS430/AB/R  
India – Autos  Panel Report, India – Measures Affecting the Automotive Sector , 
WT/DS146/R , WT/DS175/R , and Corr.1, adopted 5 April 2 002, DSR 2002:V, 
p. 1827  WT/DS495/R  
 
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  Short title  Full case title and  citation  
Indonesia – Autos  Panel Report, Indonesia – Certain Measures Affecting the Automobile 
Industry , WT/DS54/R , WT/DS55/R , WT/DS59/R , WT/DS64/R , Corr.1  and 
Corr.2, adopted 23 July 1998, and Corr.3 and Corr.4, DSR 1998:VI, p. 2201  
Japan – Agricultural Products II  Appellate Body Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/AB/R , adopted 19 March 1999, DSR 1999:I, p. 277  
Japan – Agricultural Products II  Panel Report, Japan – Measures Affecting Agricultural Products , WT/DS76/R , 
adopte d 19 March 1999, as modified by Appel late Body Report 
WT/DS76/AB/R, DSR 1999:I, p. 315  
Japan – Alcoholic Beverages II  Appellate Body Report, Japan – Taxes on Alcoholic Beverages , 
WT/DS8/AB/R , WT/DS10/AB/R , WT/DS11/AB/R , adopted 1 November 1996, 
DSR 1996:I, p. 97  
Japan – Alcoholic Beverages II  Panel Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/R , 
WT/DS10/R , WT/DS11/R , adopted 1 November 1996, as modified by 
Appellate Body Report WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, DSR 
1996:I, p. 125  
Japan – Apples  Appellate Body Report, Japan – Measures Affecting the Importation of 
Apples , WT/DS245/AB/R , adopted 10 December 2003, DSR 2003:IX, p. 
4391 
Japan – Apples Panel Report, Japan – Measures Affecting the Importation of Apples , 
WT/DS 245/R , adopted 10 December 2003, upheld by Appellate Body Report 
WT/DS245/AB/R, DSR 2003:IX, p. 4481  
Japan – Apples (Article 21.5 – 
US) Panel Report, Japan – Measures Affecting the Importation of Apples – 
Recourse to Article 21.5 of the DSU by the United States , WT/DS245/RW , 
adopted 20 July 2005, DSR 2005:XVI, p. 7911  
Korea – Alcoholic Beverages  Panel Report, Korea – Taxes on Alcoholic Beverages , WT/DS75/R , 
WT/DS84/R , adopted 17 February 1999, as modified by Appellate Body 
Report WT/DS75/AB/R, WT/DS84/AB/R, DSR 1999:I, p. 44  
Korea – Commercial Vesse ls Panel Report, Korea – Measures Affecti ng Trade in Commercial Vessels , 
WT/DS273/R , adopted 11 April 2005, DSR 2005: VII, p. 2749  
Mexico – Anti-Dumping 
Measures on Rice  Appellate Body Report, Mexico – Definitive Anti -Dumping Measures on Beef 
and Rice, Complaint with Respect to Rice , WT/DS295/AB/R , adopted 20 
December 2005, DSR 2005:XXII, p. 10853  
Mexico – Taxes on Soft Drinks  Appellate Body Report, Mexico – Tax Measures on Soft Drinks and O ther 
Beverages , WT/DS308/AB/R , adopted 24 March 2006, DSR 2006:I, p. 3  
Mexico – Taxes on Soft Drinks  Panel Report, Mexico – Tax Measures on Soft Drinks and Other Beverages , 
WT/DS308/R , adopted 24 March 2006, as modified by Appellate Body Report 
WT/DS308/AB/R, DSR 2006:I, p. 43  
Philippines – Distilled Spirits  Panel Reports, Philippines – Taxes on Distilled Spirits , WT/DS396/R  / 
WT/DS403/R , adopted 20 January 2012, as modified by Appellate Body 
Reports WT/D S396/AB/R / WT/DS403/AB/R, DSR 2012:VIII, p. 4271  
Russia – Pigs (EU)  Panel Report, Russian F ederation – Measures on the Importation of Live Pigs, 
Pork and Other Pig Products from the European Union , WT/DS475/R  and 
Add.1, adopted 21 March 2017, as modified by Appellate Body  Report 
WT/DS475/AB/R  
Thailand – Cigarettes 
(Philippines)  Appellate Body Report, Thailand – Customs and Fiscal Measures on 
Cigarettes from the Phi lippines , WT/DS371/AB/R , adopted 15 July 2011 , DSR 
2011:IV, p. 2203  
Thailand – Cigarettes 
(Philippines)  Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes from 
the Philippines , WT/DS371/R , adopted 15 July 2011, as modified by 
Appellate Body Report WT/DS371/AB/R , DSR 2011:IV, p. 2299  
US – Animals  Panel Report, United States – Measures Affecting the Importation of Animals, 
Meat and Oth er Animal Products from Argentina , WT/DS447/R  and Add.1, 
adopted 31 August 2015 
US – Clove Cigarettes  Appellate  Body Report, United States – Measures Affecting the Production 
and Sale of Clove Cigarettes , WT/DS406/AB/R , adopted 24 April 2012, DSR 
2012: XI, p. 5751  
US – Clove Cigarettes  Panel Report, United States – Measures Affecting the Production and Sale of 
Clove Cigarettes , WT/DS406/R , adopted 24 April 2012, as modified by 
Appellate Body Report WT/DS406/AB/R, DSR 2012: XI, p. 5865  WT/DS495/R  
 
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  Short title  Full case title and  citation  
US – Continued Suspensio n Appellate Body Report, United States – Continued Suspension of Obligations 
in the EC – Hormones Dispute , WT/DS320/AB/R , adopted 14 November 
2008, DSR 2008:X, p. 3507  
US – COOL  Panel Reports, United States – Certain Country of Origin Labelling (COOL) 
Requirements , WT/DS384/R  / WT/DS386/R , adopted 23 July 2012, as 
modified by  Appellate Body Reports WT/DS384/AB/R / WT/DS386/AB/R, 
DSR 2012:VI, p. 2745  
US – Cotton Yarn  Appellate Body Repo rt, United States – Transitional Safeguard Measure on 
Combed Cotton Yarn from Pakistan , WT/DS192/AB/R , adopted 5 November 
2001, DSR 2001:XII, p. 6027  
US – Countervailing and Anti -
Dumping Measures (China)  Panel Repor t, United States – Countervailing and Anti -Dumping Measures on 
Certain Products from China , WT/DS449/R  and Add.1, adopted 22 July 2014, 
as modified by Appellate Body Report WT/DS449/AB/R, DSR 2014:VIII, p. 
3175 
US – Countervailing Duty 
Investigation on DRAMS  Appellate Body Report, United States – Countervailing Duty Investigation on 
Dynamic Random Access Memory Semiconductors (DRAMS) from Korea , 
WT/DS296/AB/R , adopted 20 July 2005, DSR 2005:XVI, p. 8131  
US – FSC Appellate Body Report, United States – Tax Treat ment for "Foreign Sales 
Corporations" , WT/DS108/AB/R , adopted 20 March 20 00, DSR 2000:III, p. 
1619 
US – Gambling  Appellate Body Report, United States – Measures Affecting the Cross -Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R , adopted 20 April 
2005, DSR  2005:XII, p. 5663 (and Corr.1, DSR 2006:XII, p. 5475)  
US – Gasoline  Appellate Body Report, United States – Standards for Reformu lated and 
Conventional Gasoline , WT/DS2/AB/R , adopted 20 May 1996, DSR 1996 :I, p. 
3 
US – Lamb  Appellate Body Report, United States – Safeguard Measures on Imports of 
Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia , 
WT/DS177/AB/R , WT/DS178/AB/R , adopted 16 May 2001, DSR 2001:IX, p. 
4051 
US – Large Civil Aircraft (2nd 
compl aint) Panel Report, United States – Measures Affecting Trade in Large Civil Aircraft 
(Second Complaint) , WT/DS353/R , adopted 23 March 2012, as modified by 
Appellate Body Report WT/DS353/AB/R, DSR 2012:II, p. 64 9 
US – Poultry (China)  Panel Report, United States – Certain Measures Affecting Imports of Poultry 
from China , WT/DS392/R , adopted 25 October 2010, DSR 2010:V, p. 1909  
US – Shrimp  Appellat e Body Report, United States – Import Prohibition of Certain Shrimp 
and Shrimp Products , WT/DS58/AB/R , adopted 6 November 1998, DSR 
1998:VII, p. 2755  
US – Softwood Lumber VI 
(Article 21.5 – Canada)  Appellate Body Re port, United States – Investigation of the International 
Trade Commission in Softwood Lumber from Canada – Recours e to Article 
21.5 of the DSU by Canada , WT/DS277/AB/RW , adopted 9 May 2 006, and 
Corr.1, DSR 2006:XI, p. 4865  
US – Tax Incentives  Panel Report, United States – Conditional Tax Incentives for Large Civil 
Aircraft , WT/DS487/R  and Add.1, circulated to WTO Members 28 November 
2016 [appealed by the United States 16 December 2016]  
US – Tuna II (Mexico)  Panel Report, United States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products , WT/DS381/R , adopted 13 
June 2012, as modified by Appellate Body Report WT/DS381/AB/R, DSR 
2012:IV, p. 2013  
US – Underwear  Appellate Body Report, United Stat es – Restrictions on Imports of Cotton and 
Man-made Fibre Underwear , WT/DS2 4/AB/R , adopted 25 February 1997, 
DSR 1997:I, p. 11  
US – Underwear  Panel Report, United States – Restrictions on Imports of Cotton and Man -
made Fibre Underwear , WT/DS24/R , adopted 25 February 1997, as modified 
by Appellate Body Report WT/DS 24/AB/R, DSR 1997:I, p. 31  
US – Upland Cotton  Appellate Body Report, United States – Subsi dies on Upland Cotton , 
WT/DS267/AB/R , adopted 21 March 2005, DSR 2005:I, p. 3 
US – Upland Cotton  Panel Report, United States – Subsidies on Upland Cotton , WT/DS267/R , 
Add.1 to Add.3 and Corr.1, adopted 21 March 2005, as modified by Appellate 
Body Report WT/DS267/AB/R, DSR 2005:II, p. 299  WT/DS495/R  
 
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  Short title  Full case title and  citation  
US – Upland Cotton (Article 
21.5 – Brazil)  Panel Report, United States – Subsidies on Upland Cotton – Recourse to  
Article 21.5 of the DSU by Brazil , WT/DS267/RW  and Corr.1, adopted 20 
June 2008, as modified by Appellate Body Report WT/DS267/AB/RW, DSR 
2008:III, p. 997  
US – Wool Shirts and Blouses  Appellate Body Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R , adopted 23 May 1997, 
and Corr.1, DSR 1997:I, p. 323  
 WT/DS495/R  
 
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  EXHIBITS FREQUENTLY REFERRED TO IN THI S REPORT1 
Exhibit
No. Short title  Title 
JPN-2 2015 IAEA DG report  International Atomic Energy Agency, "The Fukushima Daiichi 
Accident: Report by the Director General" (August 2015)  
JPN-3.b PMO Blanket Import Ban 
and Additional Testing 
Requirements Press 
Release  Korea Prime Minister 's Office, Press Release, "Government 
Bans Import of All Fishery Products from 8 ken near 
Fukushima" (6 September 2013)  
JPN-7 2015 IAEA DG Report, 
Technical Volume 1  International Atomic Energy Agency, "The Fukushima Daiichi 
Accident - Technical Volume 1/5 – Description and Context 
of the Acc ident" (August 2015)  
JPN-11 Analysis of caesium and 
additional radionuclides in 
food products from Japan 
and the rest of the world  Professor David J. Brenner and Dr. Ken O. Buesseler, 
"Anal ysis of the Presence of Cesium and the Ratio of 
Additional Radionuclides to Cesium in Food Products from 
Japan and the Rest of the World" (11 March 2016)  
JPN-24 WHO Fact sheet on 
ionizing radiatio n World Health Organization , "Ionizing radiation, health e ffects 
and protective measures"  (November 2012), Fact Sheet No. 
371 
JPN-30 Response by Korea 's SPS 
Enquiry Point  Response by Korea 's SPS Enquiry Point to Request of 24 
June 2014 from Japan's SPS Enquiry Point (26 August 2014)  
JPN-31 Japan's June 2014 
Request to Korea's SPS 
Enquiry Point  Japan 's SPS Enquiry Point, "Request for relevant documents 
and information related to SPS measures following the 
Fukushima nuclear power plant accident" (24 June 2014)  
JPN-32 CODEX STAN 193 -1995 Codex Alimentarius Commis sion, "Codex General Standard 
for Contaminants and Toxins in Food and Feed", CODEX 
STAN 193 -1995 (1995, as updated in 2015)  
JPN-42.b MHLW Concepts of 
Inspection Planning and 
Items and Areas to which 
Restrictions of Distribution 
and/or Consumption of 
foods applies  Japan 's Ministry of Health, Labour and Welfare, "The 
Revision of the ‘Concepts of Inspection Planning and the 
Establishment and Cancellation of Items and Areas to which 
Restriction on Distribution and/or Consumption of Fo ods 
concerned Applies " (Developed by the Nuclear Emergency 
Response Headquarters)" (20 March 2015)  
JPN-43 FAJ Monitoring Report  Fisheries Agency of Japan, "Report on the Monitoring of 
Radionuclides in Fishery Products (March 2011 – January 
2015)" (April 2 015)  
JPN-48 Japan MHLW Internal 
Distribution Restrictions on 
Food Japan Ministry of Health, Labour and Welfare, "The 
instructions associated with food by Director -General of the 
Nuclear Emergency Response Headquarters" (as of 9 
February 2016)  
JPN-55.b 
(revised), KOR -
72 (revised ) Status of KFDA's Response 
and Management 
Measures Regarding the 
Japanese Nuclear Crisis 
(5) Korea Food and Drug Administration, Press Release, "Status 
of KFDA's Response and Management Measures Regarding 
the Japanese Nuclear Crisis (5)" (14 April 2011)  
JPN-75.b MFDS notice for 2013 
blanket import ban and 
additional testing 
requirements  Korea Mi nistry of Food and Drug Safety, Press Release, 
"Notice of Temporary Special Measure for Safety for Food 
Imported from Japan" (6 September 2013)  
JPN-76.b Product -Specific ban on 
Cod from Miyagi and Iwate  Korea 's Ministry of Food, Agriculture, Forestry and  Fisheries, 
Press Release, "Temporary Import Suspension on Cod from 
Miyagi -ken and Iwate -ken, Japan" (3 May 2012)  
JPN-77.b Product -Specific ban on 35 
Fishery Pr oducts from 
Fukushima  Korea 's Ministry of Food, Agriculture, Forestry and Fisheries, 
Press Rel ease, "Temporary Import Suspension on 35 Fishery 
Products, including Yellowfish from Fukushima -ken, Japan" 
(26 June 2012 ) 
JPN-78.b Product -Specific ban on 
Cod fr om Aomori  Korea 's Ministry of Food, Agriculture, Forestry and Fisheries, 
Press Release, "Tempo rary Import Suspension on Cod from 
Aomori -ken, Japan" (29 August 2012)  
JPN-79.b Product -Specific ban on 
Cod from Ibaraki  Korea 's Ministry of Food, Agriculture, Forestry and Fisheries, 
Press Release, "Temporary Import Suspension on Cod from 
Ibaraki -ken, Japan" (13 November 2012)  
                                                
1 This table only includes exhibits which are cited more than three times in the Report. If an exhibit was 
presented in the original Japanese or Korean along with a translation, the citation will be to the English 
translat ion. WT/DS495/R  
 
- 14 - 
 
  Exhibit
No. Short title  Title 
JPN-127 MAFF strontium inspection 
results (April 2011 -June 
2016)  Japan 's Ministry of Agriculture, Fore stry and Fisheries, 
"Inspection R esults for Radioactive Strontium in Fishery 
Products" ("MAFF Strontium Inspection Results") (April 
2011-June 2016) (This is an updated version of Exhibit JPN -
95) Japanese original available at: 
http://www.jfa.maff.go.jp/j/h ousyanou/pdf/strontium_7.pdf  
JPN-130(revised)  ERD Fisheries Data  Japan 's Ministry of Agriculture, Forestry and Fisheries, 
Nuclear Regulation Authority 's Environmental Radioactivity 
Database: radioactivity of fisheries products" (1963 -2015)  
JPN-131.1  ERD Agricultural Products 
Data  Japan 's Ministry of Agriculture, Forestry and Fisheries, 
Nuclear Regulation Authority 's Environmental Radioactivity 
Database: agricultural and livestock products (agricultural 
products) (1963 -2016)  
JPN-131.2  ERD A gricultural Products 
Data (milk)  Japan 's Minist ry of Agriculture, Forestry and Fisheries, 
Nuclear Regulation Authority 's Environmental Radioactivity 
Database: agricultural and livestock products (milk) (1963 -
2016)  
JPN-131.3  ERD Agricultural Products 
Data (other food)  Japan 's Ministry of Agriculture, F orestry and Fisheries, 
Nuclear Regulation Authority 's Environmental Radioactivity 
Database: agricultural and livestock products (other food) 
(1963 -2016)  
JPN-135 Fukushima Duplicate Diet 
Survey  Fukushima Prefecture, "Effective dose from Duplicate Diet 
Survey (Fukushima prefecture) " ("Fukushima Duplicate Diet 
Survey: Raw Data ") (2012 -2015) (This is an update of 
Exhibit JPN -102) 
JPN-148 Japan's scientific response 
to Korea's arguments in its 
first written submission  D.J. Brenner and K. Buesseler, "A scientif ic response to 
Korea 's arguments in its first written submission" (11 July 
2016)  
JPN-155 MAFF overview of food 
monitoring results (April 
2012– March 2016)  Japan 's Ministry of Agriculture, Forest ry and Fisheries, 
"Overview of food monitoring results" (Apri l 2012 – March 
2016) This is an update of Exhibit JPN -45 
JPN-157 MHLW Caesium Monitoring 
Data of Food Products  Japan 's Ministry of Health, Labour and Welfare, "Cesium 
Monitoring Data of Food Pr oducts" (April 2012 – July 2016) 
This is an update of Exhibit  JPN-47 
JPN-210 2013 UNSCEAR Report 
Annex A  UNSCEAR 2013 Report: Sources, Effects and Risks of 
Ionizing Radiation, Volume 1, Scientific Annex A  
JPN-211 2015 UNSCEAR White 
Paper  UNSCEAR, "Developments since the 2013 UNSCEAR Report 
on the Levels and Effec ts of Radiation Exposure due to the 
Nuclear Accident Following the Great East -Japan Earthquake 
and Tsunami: A 2015 white paper to guide the Scientific 
Committee's future programme of work"(2015)  
JPN-245 Japan's Slides presented 
at the Expert Meeting  Slides presented by Professor Brenner and Dr. Buesseler 
during the Panel meeting with the Panel -appointed experts, 
9-10 February 2017  
JPN-272  Overview of Ja pan's food monitoring data submitted to the 
Panel  
JPN-278 Implementation Guides on 
Sea Area Monitorin g 
(2016)  Implementation Guides on Sea Area Monitoring (2016), 
available at: 
http://radioactivity.nsr.go.jp/en/contents/12000/11108/24/2
74_s_20160401.pdf.p df, (last viewed 1 March 2017)  
KOR-1, ICRP -3 ICRP Publication 103: 
2007 Recommendations  ICRP, "The 20 07 Recommendations of the International 
Commission on Radiological Protection", ICRP Publication 
103. Annals of the ICRP, 37(2) (2007)  
KOR-6 National Geographic: 
Fukushima's Radioactive 
Water Leak: What You 
Should Know   P. Kiger, "Fukushima' s Radioactive  Water Leak: What You 
Should Know", NATIONAL GEOGRAPHIC NEWS (9 August 
2013)  
KOR-26 CDC radioactive isotopes  Centers for Disease Control and Prevention, "Radioactive 
Isotopes" listing I -131, Cs -137, Sr -90, Pu  
KOR-31 ICRP Publication 78: 
Individual monit oring International Commission on Radiological Protection, 
"Publication 78: Individual monitoring for internal exposure 
of workers", Annals of the ICRP, Vol. 27, Nos. 3 -4 (1997)  
KOR-32 ICRP Publication 67:Age -
dependent doses  International Commission on R adiological Protection, 
"Publication 67: Age -dependent Doses to Members of the 
Public from Intake of Radionuclides – Part 2 Ingestion Dose 
Coefficients", Annals of the ICRP, Vol. 23, Nos. 3 -4 (1993)  
KOR-40.b KFDA 2011 Instruct ion on 
new certification Korea Food & Drug Administration, "Instruction of Changed 
Measure including Certificate of Food Imports Originated WT/DS495/R  
 
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  Exhibit
No. Short title  Title 
requirements for Japanese 
food from Japan" (15 April 2011)  
KOR-43 Bloomberg: TEPCO 
President Apologizes for 
Fukushi ma Leak Disclosure 
Delay   J. Adelman and Y. Okada, "TEPCO President Apologizes for 
Fukushima Leak Disclosure Delay", BLOOMBERG (26 July 
2013), http://www.bloomberg.com/news/articles/2013 -07-
26/tepco -president -apologizes -for-fukushima -leak-
disclosure -delay  
KOR-123  Korea Food Code (20 12), Art. 1  
KOR-134 Buesseler et al. (2016)  K. Buesseler et al., "Fukushima Daiichi -Derived 
Radionuclides in the Ocean: Transport, Fate, and Impacts" 
(30 June 2016). First published online as a Review in 
Advance  
KOR-158 2014 Guidelines for Food 
Safety Ma nagement  2014 Guidelines for Food Safety Management, Ministry of 
Food and Drug Safety.  
KOR-159 2016 Guidelines for Food 
Safety Management  2016 Safety Management of Radioactivity in Food, 
Guidelines for Food Safety Management.  
   
KOR-213 Statement of Kor ea's 
experts  Professor Timothy Mousseau, Dr. JinHo Song and Professor 
Yongsung Joo Joint Statement (23 August 2016).  
KOR-281 2015 Guidelines for Food 
Safety Management  "Safety Management of Radioactivity in Food",  2015 
Guidelines for Food Safety Manageme nt 
KOR-283  Results of Further Sr and Pu Analysis of the Samples at the 
Point-of-Sale 
 
 
 WT/DS495/R  
 
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  ABBREVIATIONS USED I N THIS REPORT  
Abbreviation  Description  
ALARA  As Low as Reasonably Achievable  
ALOP Appropriate Level of Protection  
Bq Becquerel  
Codex  Codex Alimentarius Commission  
Codex Radionuclide GLs  Codex "Guideline Levels for Radionuclides in Foods Contaminated Following a 
Nuclear or Radiological Emergency"  
Codex Stan 193 -1995 Codex General Standard for Contaminants and Toxins in Food and Feed, Codex  
Stan 193 -1995 (as updated in 2015)  
DNA Deoxyribonucleic Acid  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
FAJ Fisheries Agency of Japan  
FAO Food and Agriculture Organization of the United Nations  
FDNPP  Fukushima Dai -ichi Nuclear Power Plant  
FM Fresh Mass  
GATT 1994  General Agreement on Tariffs and Trade 1994 
GBq Gigabecquerel  
GLs Guideline Levels  
GRS Gesellschaft für Anlagen - und Reaktorsicherheit (Global Research for Safety)  
Ha Hecta re 
HS Harmonized system  
IAEA International Atomic Energy Agency  
IARC International Agency for Research on Cancer  
ICRP International Commission on Radiological Protection  
INES International Nuclear and Radiological Event Scale  
IRSN Institut de Radiopr otection et de Surete Nucleaire of France  
ISO International Organization for Standardization  
JAEA Japan Atomic Energy Agency  
JAMSTEC  Japan Agency for Marine -Earth Science and Technology  
KFDA  Korea Food and Drug Administration  
(KFDA  was replaced by the MFDS in March 2013.)  
Kg Kilogram  
L Litre 
LOD Limit of Detection  
M Metre  
MAFRA  Ministry of Agriculture, Food and Rural Affairs of Korea  
(MAFRA replaced MIFAFF in March 2013. ) 
MBq Megabecquerel  
MDA Minimum detectable activity  
METI Ministry of Econom y, Trade and Industry of Japan  
MFDS  Ministry of Food and Drug Safety of Korea  
MFDS replaced KFDA in March 2013.  
MHLW  Ministry of Health, Labour and Welfare of Japan  
MIFAFF  Ministry for Food, Agriculture, Forestry and Fisheries of Korea  
(MIFAFF was repl aced by MAFRA in March 2013. ) 
MLs Maximum Levels  
MOE Ministry of the Environment of Japan  
mSv Millisievert  
NEA Nuclear Energy Agency  
NISA Nuclear and Industrial Safety Agency of Japan  
NRA Nuclear Regulation Authority of Japan  
NSC Nuclear Safety Comm ission of Japan  
OECD  Organisation for Economic Co-operation and Development  
PBq Petabecquerel  
PCV Primary Containment Vessel  
RESQ  Radiometric Environment Survey and Quantification  
SPS Agreement  Agreement on the Application of Sanitary and Phytosanitar y Measures  
Sv Sievert  
TBq Terabecquerel  
TBT Agreement  Agreement on Technical Barriers to Trade  
TEPCO  Tokyo Electric Power Company  WT/DS495/R  
 
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  Abbreviation  Description  
UNSCEAR  United Nations Scientific Committee on the Effects of Atomic Radiation  
VCLT Vienna Convention on the Law of Tr eaties, done at Vienna, 23 May 1969, 1155 
UNTS 331; 8 International Legal Materials 679  
WHO World Health Organization  
WTO World Trade Organization  
LIST OF RADIONUCLIDE S 
Symbol  Full Name  
Am-241* Americium -241 
C-14* Carbon -14 
Ce-144* Cerium -144  
Co-60* Cobalt -60  
Cs-134* Caesium -134 
Cs-137* Caesium -137 
H-3* Tritium (Hydrogen -3) 
I-129* Iodine -129 
I-131* Iodine -131 
Ir-192* Iridium -192  
Kr-85 Krypton -85 
Pu-238* Plutonium -238 
Pu-239* Plutonium -239 
Pu-240* Plutonium -240 
Ru-103* Ruthenium -103  
Ru-106* Ruthenium -106 
S-35* Sulfur -35  
Sr-89* Strontium -89  
Sr-90* Strontium -90 
Tc-99 * Technetium -99  
U-235* Uranium -235 
Xe-133 Xenon -133 
 
*Codex radionuclides see section 2.3.1.1  of this report . 
GLOSSARY OF SCIENTIFIC TERMS2 
Scientific Term  Explanation  
Abscopal effects  The changes that occur in tissues not close to irradiated body parts  
Alpha particle  Consists  of two protons and two neutrons, Alpha particles  are released by high 
mass, proton rich unsta ble nuclei. They are positively charged particles moving at 
high speeds. Examples of alpha emitters are ura nium-235, plutonium -238, 
plutonium -239, plutonium -240, and americium -241.    
Atom  
 The smallest constituent unit of ordinary matter that has the pr operties of a 
chemical element Every atom is composed of a nucleus and one or more electrons 
bound to the nucleus.  
Becquerel (Bq) The unit of radioactivity. One becquerel equals one atomic disintegration per second  
Benthic organisms  Organisms  that live i n and on the bottom of the ocean floor  
Beta particle  Beta particles are emitted by neutron rich unstable nuclei and are high energy 
electrons. Beta -emitters include strontium -89, strontium -90, tritium (hydrogen -3) 
and carbon -14. 
Bioavailability  The prop ortion of a drug or other substance which enters the circulation when 
introduced into the body and so is able to have an active effect  
Biological half -life The time for one half of a radionuclide to be expelled from the body by natural 
metabolic processes , in light of its properties (whether it deposits in blood, bone, or 
particular organs) an d the age of the person, not counting radioactive decay.  
Bystander effects  The phenomenon in which un -irradiated cells exhibit irradiated effects as a result of 
signals received from nearby irradiated cells  
Carcinogen  Any substance, radionuclide, or radiation that is an agent directly involved in 
                                                
2 For additional definitions of radiation related scientific terms, see  
https://emergency.cdc.gov/radiation/glossary.asp.  WT/DS495/R  
 
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  Scientific Term  Explanation  
causing cancer   
Carcinogenic  Capable  of causing  cancer  
Clastogenic factors  The disruption of chromosomes in un -irradiat ed cells in the plasma of an animal or 
human body exposed to radiation  
Decay  The process by which nuclides  that have an inherent tendency to do so undergo 
spontaneous nuclear transformation  
Decay heat   The heat produced by the decay of radioactive fiss ion products after a nuclear 
reactor has been shut down  
Demersal fish   Demersal fish  live and feed on or near the bottom of  seas or lakes 
Deterministic health 
effects  
 Tissue- or organ -based reactions to high doses of radiation  
The severity of determini stic effects increases as the radiation dose increases. An 
example is radiation -induced cataract, where, for acute exposure, the dose 
threshold is considered to be in excess of 500 millisievert (mSv).  
Dietary exposure  Exposure from food chemicals that ar e inadvertently present in foo d, or added to 
food for a technological purpose  
Dose coefficient  The coefficient that expresses, for radionuclides, the relationship between 
radioactivity levels, in Bq, and the effective dose, in mSv  
Duplicate diet survey  In dietary and nutritional surveys , subjects weigh and set aside a duplicate portion 
of all the foods they have eaten, for chemical analysis. Such surveys are a method 
of assessing dietary intake at the household level of any specified substances in 
foods – in this case radionuclides.   
Effective dose   
 The measurement of radiation exposure based on several factors, including the 
characteristics of the radiation at issue and the different sensitivities to radiation 
exposure of different organs and tissues  
Effective dose  per year  Overall effective dose of radiation in a year. It covers contributions from all sources, 
including from radionuclides present in food. It is expressed in mSv/year.  
Excretion  That which is separated and ejected from the body  
External exposure  Exposure to radioactivity from outside the body, such as from an x -ray machine  
Fission  A nuclear reaction or a radioactive decay process in which the nucleus of an atom 
splits into smaller parts   
FM Fresh Mass  
Gamma ray  Gamma rays are emit ted by most radioactive sources along with alpha or beta 
particles. After alpha or beta emission, the remaining nucleus may still be in an 
excited energy state. Gamma -emitters include caesium -134, caesium -137, iodine -
131, ruthenium -103, ruthenium -106, coba lt-60, cerium -144, and iridium -192.    
Heritable effects  A child, who is born after his/her parent is exposed to radiation, shows radiation 
effects  
Internal exposure  Exposure from inside the body, such as from ingestion of food containing 
radionuclides  
Intervention exemption 
level Below such a level, regulators are not expected to intervene – in particular, in the 
context of international trade. Various terms are used to describe this threshold 
level: and "intervention level of dose" and "protective acti on guide".  
Intervention level of 
dose Below such a level, regulators are not expected to intervene – in particular, in the 
context of international trade. Various terms are used to describe this threshold 
level"  Intervention exemption level"  and "protecti ve action guide".  
Ion  An atom or a molecule in which the total number of electrons is not equal to the 
total number of protons, giving the atom or molecule a net positive or negative 
electrical charge. Ions ca n be created, by either chemical or physical  means, via 
ionization.  
Ionization The process of converting (an atom, molecule, etc.) into an ion or ions  
Ionizing radiation  Radiation  that produces ionization in matter through which it passes  
Isotope  Atoms of the same element (same numbers of proton s) that have different numbers 
of neutrons. Atomic mass (as indicated by the number next to the element) = mass 
of protons + mass of neutrons. For example, plutonium has several isotopes, 
including plutonium -239 and plutonium -240. While the two isotopes sh are the same 
number of protons (94), their n umbers of neutrons differ (145 and 146 
respectively).   
Kuroshio current  A northward flowing ocean current on the western side of the North Pacific Ocean  WT/DS495/R  
 
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  Scientific Term  Explanation  
Level of radioactivity 
per kg of food 
("Bq/kg")  To ensur e compliance with the overall effective dose limit, the overall level must be 
expressed in terms of the measurable radioactivity from specific radionuclides in 
food. Typically, this is done through a formula that converts the overall mSv/year 
level into se parate thresholds for the leve l of radioactivity (Becquerels) emitted by 
specific radionuclides per kg of food ("radionuclide -specific thresholds").  
Market basket survey  
 
 
 A method of estimating dietary intake at the household level of any specified 
substances in foods, which bases t esting on a basket of food products purchased at 
markets throughout the concerned region. Food categories are purchased to make 
up the basket in proportion to the average amount of an individual's consumption of 
food in each c ategory.  
Millisievert (mSv)  Thousandths of a Sievert (see definition of Sievert below)  
MLs Maximum Levels  
Nuclei  Plural form of nucleus  
Nucleus  The small, dense region consisting of protons and neutrons at the center of an 
atom. The nucleus is mad e of one or more protons and typically a similar number of 
neutrons.  
Nuclide  An atomic species characterized by the specific constitution of its nucleu s, i.e., by 
its number of protons, its number of neutrons, and its nuclear energy state  
Neutron  A sub atomic particle, with no net electric charge and a mass slightly larger than that 
of a proton  
North Pacific Ocean 
gyre One of the five major oceanic gyres, covering most of the North Pacific Ocean; it 
has a clockwise circular pattern and is formed by the North Pacific Ocean current to 
the north, the California current to the east, the north equatorial current to the 
south, and the Kuroshio curr ent to the west  
Physical half -life The amount of time it takes for half of the atoms in a sample to decay  
 
For instance, for an atom with a half -life of 100 years, half of the original 
radioactive nuclei remain after 100 years, and one quarter remain after 200 years.  
Protective action guide  
 Below such a level, regulators are not expected to intervene – in particul ar, in the 
context of international trade. Various terms are used to describe this threshold 
level: a "intervention level of dose" ( above) and "intervention exemption level".  
Proton  A subatomic particle with a positive electric charge of +1e elementary c harge and 
mass slightly less than that of a neutron  
 
The number of protons in the nucleus defines the element. For instance, all 
plutonium isotopes have 94 protons.  
Radiation -induced 
genomic instability  If a cell survives radiation exposure, its daughter cells that have not been exposed 
to radiation also show chromosomal anomalies, such as a mutation, change in the 
chromosome number, or reduction in cell numbers in somatic cell cloning, for the 
next several generations.  
Radioactive  
(n. radioactivity)  Nuclides that have an inherent tendency to undergo spontaneous nuclear 
transformation (decay) involving the emission o f ionizing radiation in the form of 
alpha or beta particles or gamma rays  
Radioactive isotopes  Nuclide that is radioactive. Same as "radionu clide" and "radioisotopes"  
Radiological  protection  
 The protection of people from harmful effects of exposure to ionizing radiation, and 
the means for achieving this  
 
It is also referred to as radiation protection.  
Radioisotopes  Nuclide that is radioact ive 
Same as "radionuclide" and "radioactive isotopes"  
Radionuclide  Nuclide that is radioactive. Same as "radioisotopes" and "radioactive isotopes"  
Radionuclide -specific 
thresholds  Separate thresholds for the level of radioactivity emitted by specific r adionuclides 
per kg of food  
Richter scale  A mathematical device to compare the size of earthquakes  
Sievert ( "Sv") A unit used to measure the radiation exposure of the human body to a given 
amount of radiation  
It is also the unit of measurement for the effective dose.  
Soft tissue  Tissues that connect, support, or surround other structures and  organs  of the body, 
not being  hard tissue such as  bone 
 
WT/DS495/R  
 
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  Scientific Term  Explanation  
Soft tissue includes  tendons,  ligaments,  fascia,  skin, fibrous tissues,  fat, 
and synovial membranes  (which are connective tissue), 
and muscles,  nerves  and blood vessels  (which are not connective tissue).  
Stochastic effects  Human health effects after exposure to lower doses of ionizing radiation are 
stochastic effects  
The probability of an adverse effect increase s with increasing dose; the severity of 
the effect does not, however, increase with radiation dose. The most important 
stochastic health effect of low radiation doses is radiation -induced cancer.  
Transfer factor  In evaluating radionuclide uptake b y plants  from contaminated soil, the soil -plant 
transfer factor is defined as the ratio of plant -specific activity to soil -specific activity.   
Transuranium 
elements   Chemical elements  with atomic numbers greater than 92 (the atomic number of 
uranium). All of the se elements  are unstable and decay radioactively into 
other  elements . 
Uptake  Absorption or incorporation by a living system  
Vent The voluntary release of radioactive material from the containment vessels of a 
nuclear reactor into the environment  WT/DS495/R  
 
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  1  INTRO DUCTION  
1.1.  This dispute concerns the Republic of Korea's ( Korea ) imposition of import bans and 
additional testing and certification re quirements following the Fukushima Dai -ichi Nuclear Power 
Plant (FDNPP) accident on Japan's north -eastern coast on 11 March 2 011. The measures affect 
imports of certain food products from Japan.  
1.1  Complaint by Japan  
1.2.  On 21 May 2015, Japan requested consultations with Korea pursuant to Article 4 of the 
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and 
Article  XXII:1 of the General Agreement on Tariffs and Trade 1994 (GATT 1994), and Ar ticle 11.1 
of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) 
with respect to the measures and claims set out in sections 2.7 and 3 below.3 
1.3.  Consultations were held on 24 and 25 June 2015 . 
1.2  Panel establishment and composition  
1.4.  On 20 August 2015, Japan requested the establishment of a panel pursuant to Articles 4 
and 6 of the DSU with standard terms of reference.4 At its meeting on 28 September 2015 , the 
Dispute Settlement Body (DSB) established a panel pursuant to the request of Japan in document 
WT/DS 495/3 , in accor dance with Article  6 of the DSU.5 
1.5.  The Panel's terms of reference are the following:  
To examine, in the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by Japan in document 
WT/DS 495/3 and to make such findings as will assist  the DSB in making the 
recommendations or in giving the rulings provided for in those agreements.6 
1.6.  On 27 January 2016 , Japan requested the Director -General to determine the composition of 
the panel, pursuant to  Article 8.7 of the DSU . Accordingly, on 8 Feb ruary 2016 , the Director -
General composed the Panel as follows:  
Chairperson:  Mr William Ehlers  
 
Members:   Mr Ezzeddine Boutrif  
   Mr Minn Naing Oo  
 
1.7.  Brazil, Canada, China, the European Union, Guatemala, India, N orway, New Zealand, the 
Russian Federation, Ch inese Taipei, and the United States notified their interest in participating in 
the Panel proceedings as third parties . 
1.3  Panel proceedings  
1.3.1   General  
1.8.  After consultation with the parties, the Panel adopted its Worki ng Procedures, its Working 
Procedures for Cons ultations with the Experts7 and timetable on 24 February 2016.8 
1.9.  The Panel received written submissions from both parties and sent advance questions9 prior 
to holding its first meeting with the parties on 12 -13 July 2016. A session with the third parties 
                                                
3 See WT/DS495/1.  
4 WT/DS495/3.  
5 See W T/DSB/M/368.  
6 WT/DS495/4.  
7 See the Panel's Working Procedures in Annex A -1 and A -2. 
8 The Panel amended its timetable, in consultations with the parties, on multiple occasions, most 
recently on 6 October 2017.  WT/DS495/R  
 
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  took place on 12 July 2016. In the period between the first written submissions and the first 
meeting the Panel conducted its expert selection process. More information on this process and the 
consultation with t he experts and relevant international organiza tions can be found in 
section  1.3.3. 
1.10.   Subsequent to the first meeting, the Panel sent the parties ques tions to be answered in 
writing and received responses on 2 August 2016. The parties submitted their second wr itten 
submissions on 24 August 2016. The Panel held a second meeting with the parties on 13 -14 
February 2017. The Panel sent additional questions in writing after the second meeting and 
received the parties' responses on 3 March 2017. The parties commented  on each other's 
responses on 17 March 2017. Two weeks later, Japan requested an opportunity to comme nt on 
certain exhibits (KOR -294 to KOR-296, K OR-299, and KOR -303 and KOR-304) that Korea had 
submitted with its comments on Japan 's responses to the Panel 's questions after the second 
meeting. Korea objected to Japan 's request to provide comments on the specific exhibits but 
requested that in the event the Panel granted Japan 's request, Korea also be accorded an 
opportunity to provide comments on Japan 's com ments. The Panel gave Japan leave to comment 
on two of the new exhibits (KOR -299 and KOR -304). In its response to Japan's request, the Panel 
noted that paragraph 9 of the Working Procedures provides that new factual evidence can be 
submitted in comments on  answers provided by the other party. The Panel acknowledged that 
because Exhibits KOR -299 and KOR -304, were in response to factual assertions Japan made in its 
answer to Panel question No. 123(c), Korea had submitted them at the earliest opportunity 
possible. Nevertheless, the Panel found that because they contained information relating to issues 
that the parties had not already discussed in det ail, it would be appropriate to give Japan an 
opportunity to respond.10 In its decision granting Japan the opportu nity to comment on Exhibits 
KOR-299 and KOR -304, the Panel indicated that it would determine whether Korea needed an 
opportunity to respond to Japan 's comments once it had received Japan 's submission. In its 
comments, Japan did not contest the exhibits as such, but rather took issue with the fact that 
Korea did not provide a translation of all relevant parts of the exhibits. Therefore, the Panel 
determined that there would be no need for additional comments from Korea. However, the Panel 
did request that Ko rea provide full translations of certain pages of KOR -299 relating to measures 
to prevent fish movement inside and outside Fukushima harbour an d the entirety of KOR -304(a).11 
Korea provided these on 28  April 2017.  
1.11.   On 10 April 2017, the Panel issued the desc riptive part12 of its Report to the parties. The 
parties submitted comments on the descriptive part on 24 April 2017 . On 28 April 2017,  Japan 
requested the opportunity to comment on Korea's comments.13 The Panel declined this request 
noting that parties coul d comment on any revisions to the descriptive part when the Panel issued 
its Interim Report.14 The Panel issued its Interim Report to the partie s on 2 3 August  2017. The 
parties each submitted written requests for review of precise aspe cts of the Interim Rep ort on 
19 September 2017. Neither party requested an interim review meeting. The parties submitted 
comments on each other's requests for review  on 29 September 2017  
1.12.   The Panel received communications from Korea on 30 August 2017 and 21 September 2017  
enquir ing why the estimated date of issuance of the final report to the parties  was available on the 
WTO website.15 Korea expressed concern that the p ublic might be confused and believe that the 
report would be publicly available as of the date displayed on the W TO website. In its responses, 
the Panel noted that it was required under Articles 12.8 and 12.9 of the DSU to report the date of 
issuance of th e final report to the parties to the DSB16 and that it was the DSB which had made 
the  Panel's letter to the DSB public pursuant to the May 2002 decision of the General Council on 
circulation of WTO documents.17 To address  Korea's concerns, the Panel sent a new letter to the 
chairperson  of the DSB to clarify that the report would only be public after circulation to all  
                                                                                                                                                  
9 Japan's first written submission was submi tted on 14 March 2016 while Korea submitted its first 
written submission on 25 April 201 6. The Panel sent advanced questions to the parties on 30 June 2016.  
10 Annex D -4. 
11 Email from the Panel to the parties, 19 April 2017.  
12 The descriptive part of the Pa nel report comprises sections 1 to 5.  
13 Letter from Japan to the Panel, 28 April 2017.  
14 Email from the Panel to the parties, 11 May 2017.  
15 Email to the Panel, 30 August 2017 and letter to the Panel, 21 September 2017.  
16 Email from the Panel to the partie s, 1 September 2017.  
17 Letter from the Panel to the parties, 26 September 2017 (citing W T/L/452). See WT/DS495/7.  WT/DS495/R  
 
- 23 - 
 
  Members in the three official languages of the WTO. As such date depended on the completion of 
translation the Panel was not in a position to provide an estimated date of circulation.  
1.13.   The Panel issued its Final Report to the parties on 16 October 2017.  
1.3.2   Request for enhanced third -party rights  
1.14.   Canada, Norway, and Chinese Taipei requested that the Panel exercise its discretion under 
Article 12.1 of the DSU to grant third parties enhanced rights in the Working Procedures "in order 
to ensure that the interests of third parties can be fully taken into account."18 Specifically, the 
requesting third parties asked the Panel to grant them rights  to (i)  "receive an electronic copy of 
all submissions and statements of the parties, including responses to Panel questions,  up to the 
issuance of the interim report"; and (ii)  "be present for the entirety of all of the meetings of the 
Panel with the part ies".  
1.15.   In making their joint request, Canada, Norway, and Chinese Taipei identified as the basis for 
receiving enhanced third -party rights their systemic interests in the case as it would be "breaking 
new legal ground" regarding the transparency obligation s under the SPS Agreement, as well as the 
need to be fully apprised of arguments and evidence so as not to compromise their a bility to make 
submissions in the event of an appeal.  
1.16.   The Panel invited the parties and other third parties to provide their views on the request.19 
Korea expressed its opposition to the granting of enhanced third-party rights.20 Japan indicated 
that it did  not oppose the request so long as certain procedural concerns could be accommodated 
and that confidential information would b e protected.21 The European Union, Guatemala, India, 
and New Zealand expressly supported the request.22 The United States did not sp ecifically oppose 
the concept of enhanced third -party rights, but argued that any deviation from the DSU should 
only be grante d with the parties' consent.  
1.17.   After consideration of the views of the parties and third parties, the Panel informed Canada, 
Norway , and Chinese Taipei that it had declined their request.23 In providing its reasons to these 
third parties, the Panel held that  when drafting the DSU, WTO Members were aware that panels 
would regularly be called upon to consider important systemic issues of  first impression and they 
had drafted the basis for third -party access with this in mind. Similarly, the Panel considered tha t 
the DSU drafters devised Article 10 knowing that third parties would be given the opportunity to 
make submissions and be heard b y the Appellate Body and considered that the access permitted 
under Article 10 would be sufficient to allow them to participat e effectively. The Panel was also 
mindful that the distinction drawn in the DSU between parties and third parties should not be 
blurred.24  
1.3.3   Consultation with experts and international organizations  
1.3.3.1   Panel's decision to consult experts  
1.18.    As Japan's request for  establishment of a panel identified provisions of the SPS Agreement  
and was likely to deal with complex scientific matters , the P anel was of the view that in accordance 
with Article 11.2 of the SPS Agreement it should consult experts and international org anizations to 
facilitate the carrying out of its mandate.25 Therefore, the Panel's timetable and Working 
                                                
18 Letter from Canada, Norway, and Chinese Taipei to the Panel, 1 March 2016.  
19 Email  from the Panel to the parties  and third parties , 3 March 2016.  
20 Letter from Korea to the Panel, 11 March 2016.  
21 Letter from Japan to the Panel, 11 March 2016.  
22 European Union's communication to the Panel, 2 March 2016, India' s communication to the Panel, 
3 March 2016, New Zealand's communication to the Panel,  9 March 2016, United States' communication to the 
Panel, 11 March 2016, and Guatemala's communication to the Panel, 11 March 2016.  
23 The full text of the Panel's decision is contained in Annex D -1. 
24 Panel's decision on enhanced third -party rights, 26 May  2016 (citing Panel Report, EC – Bananas III 
(Guatemala and Honduras) , para.  7.9). See also Panel Report, EC – Tariff Preferences , Annex A, para.  7(d); 
Panel Report, EC – Export Subsidies on Sugar (Australia, Brazil and Thailand) , para.  2.7; and Panel Repo rt, 
EC and certain member States – Large Civil Aircraft , para.  7.166.  
25 The P anel's consultation with experts was also carried out pursuant to the Panel's authority under 
Article  13 of the DSU.  WT/DS495/R  
 
- 24 - 
 
  Procedures contemplated fr om the outset that experts and international organizations would be 
consulted. Thus the Panel adopted both regular Working Pro cedures and the Working Procedures 
for Consultations with Experts shortly after the organizational meeting. In light of the often time-
consuming process of expert selection and seeking efficiencies in the process to ensure prompt 
settlement of the dispute,  the Panel's timetable called for the process of selecting experts to take 
place between the date of the respondent's first writte n submission and the date of the first 
meeting . 
1.19.   Shortly after the Panel received Korea's first written submission, the Panel s ent a 
communication to the parties seeking their views on the use of scientific experts and consultation 
with relevant internation al organizations.26 In particular, the Panel asked the parties whether it 
should seek scientific or technical advice from exper ts and relevant international organizations 
and, if so, from which international organizations and in what scientific or technical  areas. In its 
response to the Panel's letter Japan proposed that the Panel should consider waiting to make its 
decision on wh ether to consult experts until after it had received the parties' second written 
submissions. According to Japan, it would only be  at this point that the Panel would be able to 
assess the number, nature, and degree of contested facts. Japan did not respond  to the specific 
questions posed by the Panel.27 In its response, Korea "consider[ed] that the Panel could seek 
expert advice and c onsult international organizations in the following scientific areas: severe 
nuclear accidents, human health impact from expos ure to radiation, radionuclide contamination in 
foods, and radionuclides in the marine environments: biota, seawater, sediments". Korea also 
proposed that Codex  Alimentarius Commission (Codex), the Food and Agriculture Organization 
(FAO), the International  Atomic Energy Agency (IAEA), International Agency for Research on 
Cancer (IARC), the International Commission on Radiological Pro tection (ICRP), the World Health 
Organization (WHO), Global Research for Safety  (GRS), and the Institut de radioprotection et de 
sûreté nucléaire  (IRSN) were relevant international organizations for the dispute.28 
1.20.   The Panel informed the parties that it saw no reason to delay the beginning of the expert 
selection process until after the second written submissions for a variety of r easons. First, the 
Panel could determine from the nature of the evidence and argumentation already on the record 
that it would ben efit from an expert consultation process. Moreover, the core elements in the 
dispute were readily discernible from the parties ' first written submissions. The Panel noted that it 
was not proposing to draft the questions to the experts until after it had re ceived the parties' 
second written submissions. Finally, the Panel decided that waiting until after the receipt of the 
parties ' second written submissions to commence the expert selection process would most 
probably have a significantly deleterious impact on the timetable.29  
1.3.3.2   Panel's selection of individual experts  
1.21.   Promptly after making its decision, the Panel contacted the Codex Secretariat, the FAO, the 
IAEA, the ICRP, the United Nations Scientific Committee on the Effects of Atomic Radiation 
(UNSCEAR), an d the WHO requesting the assistance of these agencies in identifying scientific or 
technical experts in the following areas: ( i) release of nuclear materials into the environment (by 
accident or by other means); (ii) radionuclide contamination in food incl uding testing methods and 
any differences in contamination based on the source of contamination (air, groundwater, or  
natural ly occurring); and (iii) radionuclides in marine environments including issues of radionuclide 
deposits in the ocean and levels of  radioactivity in marine organisms.30 Although neither party had 
mentioned UNSCEAR, the Panel decided to contact this organizat ion as it is the United Nations 
agency tasked with assessing the global levels and effects of ionizing radiation and therefore is 
well placed to know of experts with the requisite scientific knowledge throughout the world . With 
respect to  Global Research for Safety  (GRS), and the Institut de radioprotection et de sûreté 
nucléaire  (IRSN) the Panel notes that these and other national n uclear safety agencies and NGOs 
are part of the international network available to the IAEA and UNSCEAR.31 The Panel did not 
contact the IARC as it was not seeking expertise in the health effects of exposure to ionizing 
                                                
26 Letter from the Panel to the parties, 26 April 2016.  
27 Letter from Japan to the Panel, 2 May 2016.  
28 Letter from Korea to the Panel, 2 Ma y 2016.  
29 Letter from the Panel to the parties, 9 May 2016 . 
30 Letter from the Panel to the parties, 9 May 2016.  See also email from Panel to the partie s, 
6 June 2016.  Letter fro m the Panel to the parties, 15 July 2016.  
31 For further information on the or ganizations that UNSCEAR liaises with see  
http://www.unscear.org/unscear/en/media/links.html . WT/DS495/R  
 
- 25 - 
 
  radiation32 because the issue of the r isk to human health from consumption of radionuclides was 
not in dispute.  
1.22.   Between 18 May 2016 and 20 June 2 016, the Panel received the names of 25 experts who 
the above -mentioned international organizations considered would be able to advise the Panel on 
the matters identified.33  
1.23.   The WTO Secretariat contacted each of the individuals identifie d by the internatio nal 
organizations to determine whether they were available and willing to assist the Panel as well as to 
gather their curricula vitae and potential conflicts of interest. The Panel transmitted to the parties 
all the names proposed by the international orga nizations indicating which of t hem had indicated 
that they were willing and available to assist the Panel. The Panel also provided the curricula vit ae 
and disclosure statements of the 15 experts who were available and willing to assist.  
1.24.   In accordance with  paragraph 31 of the Working Procedures for Consultations with Experts, 
the Panel invited the parties to comment on the available potential experts identified and to make 
known any compelling objections to any of the experts. The Panel communicated the nam es of the 
experts to the parties in two communications. 34 Japan accepted all of the proposed experts, 
although it expressed preferences for some ove r others. Korea accepted five of the proposed 
experts and objected to the rest.35 In Korea 's 13 June 2016 let ter commenting on the first set of 
expert names proposed, Korea objected to every expert proposed with expertise in radionuclides 
in marine environm ents. Korea also objected to one expert due to his employment and objected to 
other proposed experts due to their prior statements or participation in risk assessments related to 
the FDNPP  (e.g. the 2013 UNSCEAR Report)  that Korea alleged could possibly af fect their 
independence or impartiality. In its comments on the second set of proposed experts dated 7 July 
2016, Japan also included responses to Korea's objections to the first set of proposed experts 
stating that it was "difficult to reconcile Korea's o bjections to the experts, with the need, 
advocated by Korea itself, to possess expertise in the [stated] are as." With respect to the second 
set of names, Korea objected to one of the proposed experts due to Korea 's previous consultation 
with that expert on  this dispute. Korea objected to two other experts because it argued that there 
was information that gives r ise to justifiable doubts about their impartiality. Korea accepted the 
other two experts who were proposed. Upon Korea's request, the Panel allowed Korea to respond 
to Japan's comments in its 7 July 2016 letter that were rebuttals of Korea's earlier object ions to 
the first set of proposed experts. In its 12 July 2016 comments, Korea reiterated and augmented 
its arguments with respect to not selecting experts that had specifically assisted in preparing 
UNSCEAR's 2013 Report . 
1.25.   The Panel provided its reasoning on the selection of experts to the parties on 15 July 
2016.36 In making its decision, the Panel sought expertise in the three different areas referre d to 
in paragraph  1.21 above . The Panel also sought to ensure that there were at least two individuals 
who were experts in each area.  
1.26.   The Panel accepted Korea's objections to three experts because there was a potential for 
partiality or bias. The Pane l did not accept Korea's objections to four experts simply because these 
particular experts appeared to have participated in the drafting of the 2013 UNSCEAR Report on 
the FDNPP accident. The Panel noted that the  report was commissioned by an organ of the United 
Nations that had sought the best experts in the field. The report was concerned with the 
immediate effects of the accident on the people living in and around the FDNPP and not with 
people who consume some Japanese food products as part of their diet . Although some elements 
in the report addressed internal exposure of people living in and around the FDNPP through 
consumption of contaminated food, the Panel noted that the report was not an assessment of the 
risks arising from human consumption of radio nuclides in food products. Therefore, it was the 
Panel's view that participation of these experts in the preparation of the report would not per se  
                                                
32 Letter from the Panel to the parties, 9 May 2016.  
33 Communications from UNSCEAR on 18 May 201 7, ICRP on 19 May 2016, IAEA on 7 June 2016; FAO 
on 16 June 2016, and WHO on 20 June 2016. On 8 July 2016, Codex informed the Panel that the FAO's reply 
included input from Codex.  
34 The Panel provided the first list on 6 June 2016 and sent an updated list on 30 June 2016 as the 
international organizations had provided names at different times and thus the Panel received the responses 
from the experts on a staggered basis.   
35 Japan 's and Korea's communications to the Panel, 13 June 2016 and 7 July 2016.  
36 See Annex D -2. WT/DS495/R  
 
- 26 - 
 
  disqualify them. Nevertheless, the Panel was able to identify en ough suitable experts without 
selecting the four experts who participated in the preparation of the 2013 UNSCEAR Report . 
1.27.   In considering Korea's other objections, the Panel noted that although it required assistance 
in the area of radionuclides in marine en vironments Korea had objected to every expert identified 
with expertise in this field. The Panel carefully scrutinized Korea's objections. With respect to two 
of the experts, the Panel found t hat Korea's objections were either unsubstantiated or did not 
demonstrate any reasonable concerns about conflict of interest, bias, or partiality on the part of 
these experts. Therefore, in the circumstances of this dispute and after full consideration of the 
argumentation presented by both parties, the Panel found tha t Korea's objections to the two 
experts were not sufficient to preclude them from assisting the Panel in evaluating the evidence 
presented in an objective and independent manner.  
1.28.   The Panel in formed the parties that it had selected the following experts: P rofessor Lynn 
ANSPAUGH37, Ms Joanne BROWN38, Professor Rolf MICHEL39, Dr Lavrans SKUTERUD40, and 
Dr Patsy THOMPSON41. Each of the selected experts had expertise in at least two of the areas 
identif ied by the Panel (see paragraph  1.21 above ), and two of the experts were able to advise in 
all three areas.  
1.29.   At the time it made its selection, t he Panel noted that Korea had also requested that the 
Panel seek additional experts in the areas of severe nuclear accidents and  the risks of 
radionuclides to human health.42 The Panel did not accede to Korea's request. In particular, the 
Panel found that e xpertise in nuclear accidents was covered by the area (i) "release of nuclear 
materials into the environment (by accident or by other means)". Moreover, the Panel noted that 
the issue of the risk to human health from consumption of radionuclides was not in  dispute and 
thus, the Panel did not need assistance in assessing any evidence in this area.  
1.30.   In its o pening statement at the se cond meeting, Korea stated that it had requested the 
Panel to seek experts "with broader experience as food safety risk assessor s." According to Korea 
it "had emphasized early in the proceedings the importance of having experts with expertise in the 
                                                
37 Professor Anspaugh's fields of research cover (i) trace elements in human metabolism, (ii) aeolian 
resuspension of transuranic radionuclides, (iii) public health i mplications of the use of nuclear energy, (iv) 
environmental and health effects of utilizing geothermal energy, (v) calculation of radiation doses from nuclear 
reactor accidents, (vi) reconstruction of radiation doses from releases from plutonium -productio n facilities, (vii) 
reconstruction of radiation doses from NTS and (viii) global nuclear weapons tests. He is currently Research 
Professor Emeritus of Radiology, at the University of Utah School of Medicine.  
38 Ms Joanne Brown is experienced in radiation pr otection in the area of health risk assessment and 
development of public health guidance and advice on radiation protection issues, including drinking water and 
radioactive contaminated land. She is also experienced in emergency response following nuclear accidents on 
transfer in the terrestrial environment, dose assessment, environmental monitoring and the implementation of 
remediation options for drinking water and inhabited areas, including waste water.   
39 Professor Michel's fields of research cover (i)  radiation transport, (ii) nuclear metrology and nuclear 
analytical methods, (iii) production of radionuclides in nuclear reactions, (iv) interactions of cosmic radiation 
with matter, and (v) radioecology and exposure assessment. Until his retirement, Prof essor Michel was 
responsible for radiation protection auditing at Hannover University. Among other things, fro m 1999 – 2006 
and 2008 -2016 Professor Michel was a member of the German Commission on Radiological Protection (SSK). 
From 2012 -2016, he was chairm an. From 2007-2016 he was the German delegate to UNSCEAR.  
40 Dr Lavrans Skuterud's fields of research cover (i) radiation protection and (ii) environmental 
radioactivity and nuclear accident consequence assessment and management, nationally and internationa lly. 
Dr Skuterud is presently a research scientist/senior scientist with the Norwegian Radiation Protection Authority. 
He is also a member of the working committee of the Norwegian Scientific Committee for Food Safety. The 
working committee assesses health  risks associated with radionuclides in diets in Norway.  
41 Dr Patsy Thompson is experienced in the development and validation of ecological risk assessment 
approaches to assess radiological risks to non -human biota; in the development and implementation of  a 
regulatory framework for protection of the environment within a nuclear regulatory body (protection  
requirements; human health and ecological risk assessments; effluent and environmental monitoring); in the 
development and implementation of a strategic  research agenda (effects of radioactivity and metals (U, As, Ni, 
Se) on aquatic biota and small mammals; behaviour of tritium in the terrestrial environment and effects of 
tritium on human health; epidemiological studies on uranium miners and nuclear ener gy workers and 
populations living around nuclear facilities; health impacts of severe nuclear accidents). For ten years (until 
July 2016), Dr  Thompson was Director General, Directorate of Environmental and Radiation Protection and 
Assessment at the Canadia n Nuclear Safety Commission. At the time of the proceedings, Dr Thompson held or 
had recently held a number of scientific and regulatory functions, including as Canadian delegate to UNSCEAR 
and as Canadian delegate to the IAEA Radiation Safety Standards Co mmittee. 
42 Korea's communications to the Panel, 2 May 2016 and 7 July 2016.  WT/DS495/R  
 
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  scient ific assessment of food safety issues having regulatory impact".43 Following a request from 
the Panel  to identify where Korea mad e this request , Korea stated that the relevant 
communications  were its letters of 2 May 2016, 7 July 2016 and 12 July 2016. In t hose letters 
Korea indicated its view that the Panel needed expertise in "radionuclide contamination in foods" 
and in "human hea lth impact from exposure to radiation." In its 7 July letter, Korea also noted the 
importance of the Codex as "one of the intern ational organizations recognized as a relevant 
authority for food safety in paragraph 3(a) of Annex A of the SPS Agreement ". The Panel is unable 
to find in the communications identified by Korea, a specific request for experts in the assessment 
of food saf ety issues having a regulatory impact or food safety risk assessors. With regard to 
Korea's comment about Codex, the Panel notes  that in its 8 July 2016 email, the Codex Secretariat 
stated that it had provided a consolidated response with the FAO and that no separate list of 
experts from Codex would be forthcoming.44 
1.3.3.3   Panel's questions to the individual experts and the international organizations  
1.31.   Paragraph 36 of the Panel's Working Procedures for Consultation with Experts set forth that 
the Panel may provide the experts, on a confidential basis, with relevant parts of the parties ' 
submissions. In light of the high volume of submissions and exhibits, on 29 August 2016, the 
Panel sent a communication to the parties indicating that it would prefer to provide the entirety of 
the parties' submissions to the experts and indicate to the e xperts which portions were relevant for 
their review. Japan agreed to this approach. However, citing paragraph 36 of the Working 
Procedures for Consultations with Experts as well as A rticle 13 of the DSU Korea requested that 
the Panel redact the submission s so that only the relevant parts were visible to the experts. In 
particular, Korea argued that Article 13 of the DSU provides only for panels to seek factual 
information and technica l advice from experts and thus the experts should not see the portions of  
the submissions containing legal arguments. Persuaded by Korea, the Panel provided redacted 
versions of the submissions to the parties for their comments.45 After receiving the partie s' 
comments on the redactions46, the Panel made some final adjustments. Fu rthermore, in response 
to a request from Japan, the Panel provided a more leng thy explanation of its decision  to redact  
submissions and how it determined what portions to redact .47 The Panel applied the following 
criteria in redacting the submissions: (i) a rgumentation that was solely legal in nature; (ii) 
argumentation on facts and claims that the Panel was not seeking advice from the experts on, and 
(iii) potentially inflammatory char acterizations of the parties' actions or arguments. In particular, 
the Pa nel noted that despite the additional work the redaction process entailed, the Panel felt a 
conservative approach to the interpretation of its Working Procedures was appropriate.  Moreover, 
the Panel was of the view that redaction would provide the experts with a clear picture of the 
factual issues they needed to consider without the distraction of the legal argumentation.   
1.32.   Before the Panel sent its questions to the experts and to the international organizations, 
both parties were given an opportunity to pr ovide their own proposed questions for the Panel to 
consider including in its list. The parties provided their proposed questions on 31 August 2016. 
One week later, 7 September 2016, the Panel sent its questions to the experts, including some, 
but not all,  of those proposed by the parties. At that time, the Panel informed the experts that it 
was in the process of redacting the parties' submissions and that the experts could expect to 
receive these and the relevant exhibits in an encrypted electronic format in the near future.  
1.33.   Due to the redacting process, the experts were not sent the submissions and exhibits until 
23 September 2016, three full weeks after they had been sent the questio ns. Therefore, the 
experts were granted more time than originally contemp lated in the timetable to complete their 
answers to the Panel's questions. The Panel received all the experts' answers by 18 November 
2016.  
1.34.   As the parties had raised specific argumen ts with respect to certain of their publications, the 
Panel also sent the  Codex Secretariat, the IAEA and the ICRP a limited number of questions. The 
                                                
43 Korea's opening statement at the second meeting of the Panel, para. 10.  
44 In its 12 July 2016 letter, Korea repeated its comment that Codex was one of the international 
organizat ions recognized as a relevant authority for food safety. This comment came after Codex's message of 
8 July 2017 stating that it had sent a consolidated list of experts with the FAO and that it would not be sending 
a separate list.  
45 See email from the Pane l to the parties, 7 September 2016.  
46 See p arties' comments on the redacting of submissions, 14 September 2016.  
47 Annex D -3. WT/DS495/R  
 
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  Panel also received responses  to its questions from all the organizations consulted by 
18 November 2016.  
1.3.3.4   Panel meeting with the experts and the parties  
1.35.   In preparation for the Pane l's meeting with the experts and the parties, the Panel provided 
the parties with an opportunity to submit advance questions, through the Panel, to the experts. On 
30 January 2017, th e parties submitted to the Panel advance questions for the experts.48 The 
questions were sent on to the experts shortly afterwards. The Panel held a meeting with the 
experts and the parties on 9 -10 February 2017.  
1.36.   On 13 March 2017, the Panel sent a transcrip t of the meeting with the experts and the 
parties to the individual exper ts and the parties with a request for the experts and parties to verify 
that the transcript accurately reflected the information they provided. After receiving comments, 
the Panel sen t a final version of the transcript to the parties on 21 April 2017.  
2  FACTUAL ASPECTS   
2.1  Radioactive contamination of food  
2.1.  Radionuclides – nuclides that are radioactive – are a source of ionizing radiation.49 
Radionuclides occur in both natural and man -made fo rms throughout the world and humans are 
exposed to them on a continuo us basis. Natural sources of ionizing radiation can be found in soil, 
water, or vegetation; certain X-rays and medical devices are a source of human -made ionizing 
radiation.50 They can als o occur as a consequence of nuclear weapons usage or testing or follo wing 
accidental events in nuclear facilities.  
2.2.  Background levels of radionuclides in foods vary and are dependent on several factors, 
including the type of food and the geographic region w here the food has been produced. The 
common radionuclides in food are  potassium -40 (K -40), radium -226 (Ra -226) and uranium 238 
(U-238) and their associated progeny. In general, K -40 is the most commonly occurring natural 
radionuclide (or radioisotope).  
2.3.  Radioactive material, whether natural or man -made, can enter the food ch ain following 
release events in the same way as non -radioactive material. The potential impact on human health 
depends on the type of radionuclides and the length of time people are expos ed to them as well as 
the manner of exposure (environmental or ingest ion). The amount of radiation people are exposed 
to varies from place to place and among individuals.51 
2.4.  Once released, radionuclides are transported through dispersion and dilution mechani sms 
and may become incorporated into the environment. Once in the env ironment, the fate of 
radionuclides is governed by a number of physical, chemical , and biological processes. The 
interplay between these various mechanisms will determine how , and to what  extent , various 
                                                
48 In its response to questions after the second meeting Korea notes that no representative of the Codex 
had an opportunity to prese nt their views to the Panel at the meeting with the experts. See Korea's response 
to Panel question No. 119. The Panel informed the parties on 30 January 2017 that it had not invited 
representatives of the international organizations to the meeting. T he Pa nel notes that Korea raised this issue 
only after the meeting had already occurred.  
49 "Ionizing radiation is 'radiation which produces ionization in matter through which it passes', and 
ionization is the "process" of "convert[ing] (an atom, molecule, etc.) into an ion or ions", which are positively 
or negatively charged particles." Japan's first written submission, para. 27 (citing the Oxford English 
Dictionary, OED online, (Exhibit JPN -17 and Exhibit JPN -18)). 
50 World Health Organization, "Ionizing ra diation, health effects and prote ctive measures", Fact Sheet 
No. 371 (November 2012), (WHO Fact sheet on ionizing radiation) (Exhibit JPN -24). 
51 WHO/FAO International Food Safety Authorities Network (INFOSAN) , "Nuclear accidents and 
radioactive contamination of  foods", 30 March 2011, 
http://www.who.int/foodsafety/fs_management/radionuclides_and_food_300311. pdf?ua=1; Dr  Thompson's 
responses to Panel ques tion N os. 1 and 11, paras. 2.15 -3.17; Transcript of the Panel's meeting with the 
scientific experts on 9 -10 February 2017 (Expert Meeting Transcript) , paras. 1.73, 2.4 and 2.29.  WT/DS495/R  
 
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  radionuclides may become incorporated into plants an d animals52 and thus eventually enter the 
human food chain.  
2.5.  When large amounts of radioisotopes are discharged into the environment, they can affect 
foods by either falling onto the surfac e of foods like fruits and vegetables or animal feed as 
deposits from  the air or through contaminated rain or snow. Radioactivity in water can also 
accumulate in rivers and the sea, depositing on fish and seafood. Once in the environment, 
radioactive mater ial can also become incorporated into food as it is taken up by plant s, seafood or 
ingested by animals. Although there are many different radionuclides that can be discharged 
following a major nuclear emergency, some are very short -lived and others do not readily transfer 
into food. Radionuclides generat ed in nuclear instal lations that could be significant for the food 
chain include radioactive hydrogen (H -3), carbon (C -14), technetium (Tc -99), sulphur (S -35), 
cobalt (Co -60) strontium  (Sr-89 and Sr -90), rut henium (Ru -103 and Ru -106), iodine (I -131 and I -
129), uranium (U-235) plutonium (Pu -238, Pu -239 and Pu -240), caesium (Cs -134 and Cs -137), 
cerium (Ce -144), iridium (Ir -192), and americium (Am -241).  
2.6.  The products most affected by the atmospheric release of ra dionuclides are leafy vegetables. 
Milk is also associated with  early phase contamination due to the rapid transfer of radioactive 
iodine and the "relatively" rapid transfer of radioactive caesium from contaminated feed into milk. 
Foods collected from the w ild, such as mushrooms, berries and game meat, may continue to  be a 
radiological problem for a long time.53 Fish and aquatic microflora may bioconcentrate certain 
radionuclides; the levels of concentration can be affected by the rate of dilution of radionuc lides in 
water, in light of currents or settling into sediment .  
2.7.  Uptake of radionuclides occurs through two major pathways – from contaminated water and 
from contaminated food. Radionuclides are eliminated from the body through metabolic activities . 
Uptake  and elimination rates will vary among radionuclides, and even  for one radionuclide 
depending on the  environmental characteristics and among species.54 
2.8.  Consumption of food contaminated with radionuclides will lead to a dose of internal radiation 
measured in  Sieverts ( Sv) (more generally in millisievert -  mSv). Exposu re is usually calculated 
based on a dose received from food consumption. International organizations such as the Codex or 
individual Members may set an annual dose limit, for example 1 mSv/year.  Dose coefficients, also 
called dose conversion factors, corre spond to the radiation dose (Sv) per unit intake of a 
radioactive substance (Becquerel, Bq)55, in other words the "radiation damage" for a type of 
radiation. Dose coefficients are calculated for a particular radionuclide as applied to individual 
organs or t o the whole body, and depend, inter alia , on the radionuclide itself, its longevity in the 
body, the type of incorporation (inhalation, ingestion), the tissues and organs in which the 
radionucli de is incorporated, and the age of the individual. Dose conver sion factors allow the 
calculation of a dose Bq of radionuclides ingested. The general formula is:  
Dose (Sv/year) = Bq/kg food X Kg food/year X Sv/Bq  
 
2.9.  If there is more than one radionuclide pres ent in food, the doses for each radionuclide 
calculated using the above formula are then added together to obtain a total dose of radiation 
from radionuclides ingested with the contaminated food product.56 
2.10.   Korea informed Japan that the twenty radionuclides listed in the Codex Alimentarius 
Commission General Standard f or Contaminants and Toxins in Food and Feed, CODEX STAN 193 -
1995 (CODEX STAN 193 -1995) were the subject of Korea 's concerns with respect to food -borne 
                                                
52 Dr Thompson's response to Pan el question No. 2 to the experts.  
53 WHO/FAO Internati onal Food Safety Authorities Network (INFOSAN), "Nuclear accidents and 
radioactive contamination of foods", 30 March 2011; Professor Michel's response to Panel question Nos. 2 and 
19 to the experts; Dr. Skuterud's response to Panel question No. 1 to the ex perts'.  
54 Dr Thompson's response to Panel question No. 75 to the experts.  
55 The becquerel (symbol Bq) is the unit of radioactivity in the Système International .  One Bq 
represents a rate of radioactive d ecay equal to 1 disintegration per second, see United  States Nuclear 
Regulatory Commission. Commonly used multiples are kBq (kilobecquerel, 103 Bq), MBq (megabecquerel, 
106 Bq), GBq (gigabecquerel, 109 Bq), TBq (terabecquerel, 1012 Bq), and PBq (petabecque rel, 1015 Bq). 
56 Dr Thompson's response to Panel ques tion No. 35 to the experts.  WT/DS495/R  
 
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  radionuclides.57 Because of prior release ev ents resulting from  the Chernobyl accident and nuclear 
weapons  detonations, these 20 radionuclides – most of which are man -made – can be found at 
varying levels, everywhere in the world.  
2.11.   There are six radionuclides that are particularly referenced in this dispute: caesium (Cs -134 
and Cs -137), strontium (Sr -90), pluto nium (Pu -239 and 240)58 and radioactive iodine (I -131).  
2.2  The health risks from exposure to ionizing radiation  
2.12.   It is undisputed that exposure to ionizing radiation can have detrimental impacts on human 
health. The types of adverse health effects depend on wh ether the exposure is to high dose s (a 
deterministic effect) or to low doses (stochastic effects). It is the risk of these stochastic effects 
from the potential presence of radionuclides in food  exports from Japan that Korea states it  is 
addressing through  the measures at issue.  One of the most significant adverse health effect s of 
low radiation doses is radiation -induced cancer.59 
2.13.   In particular, potential health risks associated with exposure to the six radionuclides 
principally referred to in this dispute include the following60: 
a. Caesium 134 and 137: is absorbed through body fluids, deposited in muscles and soft 
tissues in the human  body, and its dose is evenly spread to all body organs.61 Because 
caesium is evenly spread to all body organs, uptake of a large dose of caesium may 
increase cancer incidence in the muscles and soft tissues where caesium is deposited.62 
b. Strontium 90: Stront ium is absorbed through body fluids and deposited in bones  and 
teeth.63 Similar to calcium, strontium 's chemical behaviour causes it to accumulate in 
bones.64 Uptake of a large dose of strontium may increase cancer incidence in the bone 
and bone marrow. Stro ntium replaces a part of calcium that composes the bones and 
teeth of humans and animals. β -rays from Sr -90, which enters the body in place of 
calcium, and Y -90, which is produced by radioactive decay of Sr -90, kill or damage live 
cells with high energy an d turn them into cancer cells, thereby increasing the risk of 
bone cancer and causing various bone diseases.65 
c. Plutonium 239  and 240: Plutonium is absorbed in body fluids, deposited in the liver and 
bones, and then travels to other organs through body fluid s.66 For adults, 30% of 
plutonium absorbed in the body remains in t he liver and the remaining plutonium 
spreads to other tissues, including bone marrow and the kidneys. When plutonium 
particles are inhaled, they lodge in the lung tissue. Uptake of plutonium  has been 
                                                
57 Response by Korea's SPS Enquiry Point to Request of 24 June 2014 fro m Japan's SPS Enquiry Point 
(26 August 2014) (Response by Korea's SPS Enquiry Point) (Exhibit JP N-30).  This communication was in 
response to the communication from Japan's SPS Enquiry Point, "Request for relevant documents and 
informatio n related to SPS measures following the Fukushima n uclear power plant accident" (24 June 2014) 
(Japan's June 2014 Request to Korea's SPS Enquiry Point)  (Exhibit JPN -31).   
58 Korea also tests for Pu -238. 
59 Japan's first written submission, paras. 30 -31 (citing WHO Fact sheet on ionizing radiation, 
(Exhibit  JPN-24)). 
60 Korea's first written submission, para. 29.  
61 International Commission on Radiological Protection, "Publication 78: Individual monitoring for 
internal exposure of workers", Annals of the ICRP, Vol. 27, Nos. 3 -4 (1997), (ICRP Publication 78: In dividual 
monitoring), (Exhibit KOR -31); International Commission on Radiological Protection, "Publication 67: Age -
dependent Doses to Members of the Public from Intake of Radionuclides – Part 2 Ingestion Dose Coeffici ents", 
Annals of the ICRP, Vol.  23, Nos.  3-4 (1993), (ICRP Publication 67:Age -dependent doses ), (Exhibit KOR -32). 
62 Centers for Disease Control and Prevention, "Radioactive Isotopes" listing I -131, Cs -137, Sr -90, Pu 
(http://emergency.cdc.gov/radiation/isotopes/index.asp), (CDC radioactive isoto pes listing), (Exhibit KOR -26). 
63 ICRP Publication 78: Individual monitoring, (Exhibit KOR -31) and ICRP Publication 67: Age -dependent 
doses, (Exhibit KOR -32). 
64 Fukushima accident raised levels of radioactive strontium off the east coast of Japan by up to 100 
times, Science Daily, 11 June 2013, https://www.sciencedaily.com/release s/2013/06/130611084207.htm , 
(Exhibit  KOR-33).   
65 Korea's first written submission, para. 29  citing CDC radioactive isotopes listing, (Exhibit KOR -26). 
66 ICRP Publication 78: Individual monitoring, (Exhibit KOR -31); ICRP Publication 67: Age -dependent 
doses , (Exhibit KOR -32). WT/DS495/R  
 
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  reported to increase cancer incidence in organs such as the lungs, liver, and bone 
marrow.67 
d. For the iodine absorbed in the blood, 30% is accumulated in the thyroid and the 
remaining 70% is directly released through urine.68 It was found that becau se of 
radioactive iodine 's accumulation in thyroid, thyroid cancer  incidence increased among 
those who were exposed to radiation as children when the Chernobyl nuclear accident 
occurred.69 As a gas, iodine contamination may also occur through inhalation or 
absorption through the skin.  
2.14.   The potential impact of radioactivity  on the human body can be determined by calculating 
the effective dose. The effective dose measures radiation exposure based on several factors. These 
include the type of radiation at issue,  and the sensitivities to radiation exposure of the organs and 
tissues. The unit of measurement for the effective dose is the sievert (Sv); it measures the 
radiation in terms of the potential for causing harm. As this is a very large unit, it is more pract ical 
to use smaller units such as millisieverts (mSv). There are 1,000 mSv in 1 Sv.70 
2.15.   Beyond certain levels, radiation can cause tissue damage, skin redness, hair loss, radiation 
burn or acute radiation syndrome. Acute radiation exposure has a different dose threshold than 
low doses or those delivered over a longer period  of time. This is because over time there is more 
chance of the damaged cells successfully repairing themselves. This does not mean that there is 
no risk from exposure at low do ses. There may still be long -term effects if errors are incorporated 
at the cel l-repair stage, meaning that a cell may still retain its capacity for cell division. This 
transformation may lead to cancer many years later. The likelihood of this happening is  in 
proportion to the radiation dose received. The risk is higher for adolescen ts and children as they 
are significantly more susceptible to radiation exposure than adults. Relevant epidemiological 
studies have shown a significant cancer risk increase at d oses above 100 mSv71; by contrast the 
dose threshold for acute radiation syndrom e (more or less immediate effects) is 1  Sv (1 ,000 mSv).   
2.16.   According to the WHO, with regards to radiation exposure in nuclear emergencies such as 
the FDNPP, people living in close vicinity to the nuclear power plant can be externally 
contaminated by particl es deposited on skin and clothes. They can also be externally exposed to 
radionuclides present in a radioactive cloud or deposited on the ground. Populations living near a 
nuclear power plant can also suffer internal exposure if radionuclides are inhaled, ingested, or 
enter an open wound. According to the WHO "the general population is not likely to be exposed to 
doses high enough to cause acute effects but they may be expose d to low doses which could result 
in increased risk of long term effects like cance r. Consumption of radionuclides contaminated food 
and/or water contributes to overall radiation exposure."72 At present, the Korean population is not 
directly exposed to radi ation from the FDNPP accident, but only potentially through food  imported 
from affe cted areas . 
2.17.   Despite questions that remain regarding the effects from exposure to low -dose radiation, 
currently a linear extrapolation of cancer risks from intermediate to ve ry low doses appears to be 
the most appropriate methodology.73 The linear -no-thresho ld (LNT) model currently represents the 
most widely accepted dose -response model relating exposure to radiation and increase in cancer 
incidence.74 The LNT model assumes that  there is no threshold below which adverse effects can be 
guaranteed not to occur.  All of the experts consulted and both parties agreed that the LNT model 
is the current standard used worldwide in assessing risks from radionuclide exposure. Although 
                                                
67 CDC radioactive isotopes listing,  (http://emergency.cdc.gov/radiation/isotopes/index.asp , 
(Exhibit  KOR-26); Toxicological Profile for Plutonium, (Exhibit KOR-27). 
68 International Atomic Energy Agency, "Assessment of Doses to the Public from Ingested Radionuclides" 
(1999), (Exhibit KOR -34); and ICRP Publication 78: Individual monitoring, (Exhibit KOR -31). 
69 Health effects of the Chernobyl accident, (Exhibit KOR-25); CDC radioactive isotopes listing,  
(Exhibit  KOR-26). 
70 Japan's first written submission, paras. 33 -34 and WHO Fact sheet on ionizing radiation, 
(Exhibit  JPN-24). 
71 WHO Fact sheet on ionizing radiation, (Exhibit JPN -24). 
72 WHO Fact sheet on ionizing  radiation, (Exhibit JPN -24). 
73 D.J. Brenner " Cancer risks attributable to low doses of ionizing radiation:  A ssessing what we really 
know", (25 November 2003) Vol. 100, No. 24, (Exhibit KOR -138), pp. 13761 –13766. See also Korea's 
comments on the experts'  responses to Panel question No. 1 to the experts.  
74 See e.g. Dr Thompson's response to Panel question No.1 to the experts.  WT/DS495/R  
 
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  there  is uncertainty among experts regarding cancer rates associated with low doses, it is 
recognised that below certain thresholds it is impossible to detect adverse effects over and above 
natural background effects .75 More on the LNT model and its applicabilit y to this dispute is 
discussed in  paragraph 7.239 below . 
2.18.   The six radionuclides principally referred to in this dispute have varying physical half-lives 
that indicate the potential for them to remain present in the environment after a release, such as 
an accident at a nuclear power plant.  Dose coefficients are developed using physical half -lives. 
Biological half -lives represent the time  for one half of a radionuclide to be expelled from the body 
by natural metabolic processes, in light of its properties (whether it deposits in blood, bone, or  
particular organs) and the age of the person, not counting radioactive decay. Therefore, the 
biological half -life of a particular radionuclide can vary. The biological half -lives in the table below 
are illustrative and are not meant to be seen as definiti ve as to the biological half -life of that 
radionuclide in a particular individual or group of ind ividuals .76 The below table lists the different 
half-lives of each radionuclide.  
Table 1: Radionuclide half-lives 
Radionuclide  Physical Half -Life Biological Ha lf-Life 
Caesium (Cs -134) 2.1 years   
110 days  
Caesium (Cs -137) 30.1 years  
Strontium (Sr-90) 28.8 years  35 years  
 
Plutonium (Pu -239) 
 24,110 years  200 years  
 
 Plutonium (Pu -240) 
 6,563 years  
Radioactive iodine (I -131) 8 days  80 days  
Source: Figure 1 , Korea's first written submission and Professor David J. Brenner and Dr. Ken O. Buesseler, 
"Analysis of the Presence of Cesium and the Ratio of Additional Radionuclides to Cesium in Food Products from 
Japan and the Rest of the World" (11 M arch 2016) ( Analysis of caesium and additional radionuclides in food 
products from Japan and the rest of the world ), (Exhibit JPN -11). 
 
2.3  International response to radioactive contamination  
2.19.   Radioactive contamination is a global issue; no matter where radionuclides were init ially 
released, they can have an impact throughout the world. Therefore, a variety of international 
scientific organizations contribute to the assessment and management of radioactivity in the 
environment, including food. These are C odex (and its parent or ganizations the FAO and WHO) , 
UNSCEAR, the ICRP, and the IAEA. The work of these organizations is complementary and 
provides a comprehensive coverage of the international response to radioactive contamination.  
2.20.   Figure 1 below is a vi sual representation of the complementarity of the work of these 
organizations.  
                                                
75 Expert Meeting Transcript, paras. 1.73 -1.80. 
76 See e.g. Dr Thompson's response to Panel question No. 1 to the experts and UNSCEAR 2008 Report 
Sources and Effects of Ionizing Radiation . United Nations, New York, 2010, (Exhibit JPN -11.1(112)).  WT/DS495/R  
 
- 33 - 
 
  Figure 1: International response to radioactive contamination  
 
 
 
2.21.   As noted above, the Panel asked each of these organizations for assistance in identifying 
experts to assist the Panel. Moreover, the P anel sent questions to three of these organizations: 
IAEA, ICRP, and Codex. Additionally, documents published by these org anizations have been 
provided by the parties in the course of this dispute.   
2.3.1   The Codex Alimentarius Commission (Codex)  
2.22.   Codex is an in ter-governmental body created in 1963 by the FAO and the WHO under the 
Joint FAO/WHO Food Standards Programme to develop f ood standards, guidelines and 
recommendations. Codex  is recognized in Annex A (3) of the SPS Agreement as the source for 
international standards, guidelines and recommendations for food safety in respect of 
contaminants, such as radionuclides.77 Codex has 18 8 members, including both Japan and Korea.78 
The main purposes of Codex are protecting the health of consumers and ensuring fair trade 
practices in food trade. Codex also promotes the coordination of all food standards work 
undertaken by international gover nmental and non -governmental organizations. The role of 
science is paramount in the work of Codex, and Codex standards, guidelines and  recommendations 
are based on the principle of sound scientific analysis and evidence. Relevant for this dispute is  
Codex 's development of  guideline levels for radionuclides in contaminated foods in CODEX STAN 
193-1995.  
2.3.1.1   Codex guideline levels for radionuc lides in foods contaminated following a 
nuclear or radiological emergency in CODEX STAN 193 -1995  
2.23.   The establishment of "Gui deline Levels for Radionuclides in Foods Contaminated Following a 
Nuclear or Radiological Emergency" (Codex Radionuclide GLs) was firs t discussed in the aftermath 
of the 1986 Chernobyl nuclear accident, as no comprehensive international guidance on this  
existed. The first version of the Codex Radionuclide GLs was adopted by Codex in 1989 (18th 
Session of the Codex Alimentarius Commission ). The Codex Radionuclide GLs were elaborated by 
                                                
77 Specifically, Annex A(3)(a) states "for food safety, the st andards, guidelines and recommendations 
established by the Codex Alimentarius Commission relating to food additives, veterinary drug and pesticide 
residues, contaminants, methods of analysis and  sampling, and codes and guidelines of hygienic practice" are 
considered "international standards, guidelines and recommendations".  
78 See website of the Codex Alimentarius Commission (Codex website), Codex Members and Observers.  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 UNSCEAR  
Collection and  
evaluation of data  
ICRP  
Recommendations on 
radiological protection  
IAEA  
Establishment of 
international 
nuclear safety 
standards  CODEX  
(FAO /WHO ) 
Establishment of  
food safety 
standards  
Joint F AO/IAEA  
Joint Division of 
Nuclear Techniques 
in Food and 
Agriculture  WT/DS495/R  
 
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  the Codex Committee on Food Additives and Contaminants (CCFAC) based on a  text prepared 
jointly by the FAO, the WHO and the IAEA.79  
2.24.   The Codex Radionuclide GLs were incorporated in to the Codex General  Standar d for 
Contaminants and Toxins in Food and Feeds (GSCTFF) or CODEX STAN 193 -1995 upon the 
creation of this document in 1995 . CODEX STAN 193 -1995 comp rises the main principles 
recommended by Codex in dealing with contaminants and toxins in food and feed (inc luding 
radionuclides), as well as its recommended maximum levels and sampling plans for a variety of 
contaminants moving in international trade.80 CODEX S TAN 193 -1995 describes the Codex 
Radionuclide GLs as  applying to "radionuclides contained in foods dest ined for human consumption 
and traded internationally, which have been contaminated following a nuclear or a radiological  
emergency". Although Codex has no specific sampling guidelines with respect to testing 
commodities for radionuclides81, Codex has devel oped General Guidelines on Sampling (CAC/GL 
50-2004) which provide guidance on sampling procedures to ensure that food being tested 
complies with a parti cular Codex commodity standard, as well as the Principles on the Use of 
Sampling and Testing in Interna tional Food Trade in the specific case of international trade. 
Korea's sampling procedures as stipulated in the Korea Food Code are based on both of thes e 
Codex principles.82 
2.25.   The Codex Radionuclide GLs contained in CODEX STAN 193 -1995 were revised in 2006 
(29th Session of Codex, ALINORM 06/29/41 paras. 63 -66) following a request by the IAEA . The 
principal changes were  the extension of the list of radionucli des from 6 to 20, and the reduction of 
the "intervention exemption level"83 from 5 mSv per year to 1 mSv  per year. The current 
intervention exemption level of 1 mSv/year is based on ICRP recommendations.84 To determine 
the level of activity of each radionucl ide that would lead to 1  mSv/year, Codex made  assumptions 
on the quantity of food consumed per year, th e proportion of food consumed which is 
contaminated, and the ICRP dose coefficients for the different radionuclides (see section  2.36).85 
The current Codex Radionuclide GLs have been developed for 20 radionuclide s separated into four 
groups of radionuclides for each of the two food categories: "infant  foods" and "other than infant 
foods". CODEX STAN 193 -1995 specifies that GLs "have been developed with the understanding 
that there is no need to add contributions f rom radionuclides in different groups. Each group 
should be treated independently. However , the activity concentrations of each radionuclide within 
the same group should be added together".86  
2.26.   Codex uses the following formula: 1 mSv = X x kg of all food con sumed per year x 
ingestion -dose coefficient x 0.1:  
"X" is the radionuclide -specific threshold, in Bq/kg, that Codex intends to determine; 
"kg of all food consumed per year" is an assumed total amount of food consumed by 
the target population; "ingestion -dose coefficient", in mSv/Bq, is the coefficient used 
to convert  a Bq amount into a mSv amount; and 0.1 represents an assumption that 
10 percent of the food consumed per year is contaminated at the computed threshold 
level X . 
2.27.   The current Codex Radionuclide G Ls are set forth in the table below:  
                                                
79 See Codex website, "Fact Sheet on Codex Guideline Levels for Radionuclides in Foods Contaminated 
Following a Nuclear or Radiological Emergency", <http://www.fao.org/crisis/27242 -
0bfef658358a6ed53980a5eb5c80685ef.pdf>, (accessed 24 February 2017); Codex Secretariat Fact Sheet on 
Codex Radionuclide GLs, (Exhibit JPN -11.1(24)).  
80 Codex  Alimentarius Commission, "Codex General Standard for Contaminants and Toxins in Food and 
Feed", CODEX STAN 193 -1995 (1995, as updated in 2015) (CODEX STAN 193 -1995), (Exhibit JPN -32), 
para. 1.1. 
81 Codex  Secretariat Fact Sheet on Codex Radionuclide GLs, (E xhibit JPN -11.1(24)).  
82 Korea's response to Panel question No. 100.  
83 The level of individual annual radiation intake from food consumption below which regulators are not 
expected to intervene.  
84 CODEX S TAN 193 -1995, (Exhibit JPN -32), p. 40.  
85 Codex recogn izes that national authorities may wish to adopt different values for internal use within 
their own territories where the assumptions concerning food distribution that have been made to derive the 
guidel ine levels may not apply (e.g. in the case of wide -spread radioactive contamination. See CODEX 
STAN  193-1995, (Exhibit JPN -32), p. 51.  
86 CODEX STAN 193 -1995, (Exhibit JPN -32), p. 51.  WT/DS495/R  
 
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  Table 2: Guideline level s for radionuclides87 
Commodity/  
Product Name  Representative radionuclides  Codex GL 
(Bq/kg)  
Infant foods  Plutonium -238 
Plutonium -239 
Plutonium -240 
Americium -241 1 
Infant foods Strontium -90 
Ruthenium -106 
Iodine -129  
Iodine -131 
Uranium -235 100 
Infant foods Sulfur -35(*)  
Cobalt -60  
Strontium -89 
Ruthenium -103 
Caesium -134  
Caesium -137 
Cerium -144  
Iridium -192 1 000  
Infant foods Hydrogen -3(**)  
Carbon -14 
Technetium -99 1 000  
 
 
Commodity/  
Product Name  Representative radionuclides  Codex GL 
(Bq/kg)  
Foods  Plutonium -238 
Plutonium -239 
Plutonium -240 
Americium -241 10 
Foods  Strontium -90 
Ruthenium -106 
Iodine -129  
Iodine -131  
Uranium -235 100 
Foods  Sulfur -35(*)  
Cobalt -60  
Strontium -89 
Ruthenium -103 
Caesium -134 
Caesium -137  
Cerium -144 
Iridium -192 1 000  
Foods  Hydrogen -3(**)  
Carbon -14 
Technetium -99 10 000  
* This represents the value for organically bound sulphur  
** This represents the value for organically bound tritium  
 
2.28.   Both parties have acknowledged the ne cessity of limiting exposure to these 20 
radionuclides . Korea explains that it regulates the 20 Codex radionuclides through radionuclide -
specific maximum levels expressed in  Bq/kg.88 Japan also maintains radionuclide specific 
maximum levels, however it regu lates overall do se exposure by using the 100 Bq/kg  limit for 
caesium as a proxy for the other radionuclides without specifically testing for them. Japan's 
method of  regulat ion focuses on CS-134 and Cs -137, in light of the characteristics of the FDNPP 
accident. In particular , Japan has designed its regulatory framework in light of its understanding 
that if the amount of caesium in a product is below 100 Bq/kg the levels of the other radionuclides 
will be below the Codex limits.89 Japan explains that its 100 B q/kg limit for cae sium is imposed to 
ensure that exposure from relevant radionuclides from the consumption of food products does not 
                                                
87 CODEX STAN 193 -1995, (Exhibit JPN -32), p. 50. Korea applies the Codex G Ls for all radionuclides 
except as indicated in the t able for the radionuclides in bold: Both Japan and Korea  apply lower maximum 
levels to Cs -134 and Cs -137, and Korea applies a lower maximum level for I -131 in infant foods.  
88 Korea's first written submis sion, para. 234; Response by Korea's SPS Enquiry Poin t, (Exhibit JPN -30) 
and CODEX STAN 193 -1995, (Exhibit JPN -32), p. 50. See also Japan's first written submission, para. 38.  
89 Japan's first written submission, paras. 62 et seq.  WT/DS495/R  
 
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  exceed 1 mSv/year. Both Japan and Korea maintain a specific m aximum level for caesium of 
100 Bq/kg.  
2.29.   Codex standards are nor mally elaborated t hrough an eight -step process which can be 
reduced to a minimum of five steps in certain cases. Draft standards are prepared by a Codex 
committee hosted by a member country and circulated throughout the different steps between the 
drafting  committee, the Co dex commission, the relevant general subject committees, as well as 
governments and interested parties. With regards to the management of contaminants in food, the 
preamble of CODEX STAN 193 -1995 sets out the principle that "[c]ontaminant  levels in food an d 
feed shall be as low as reasonably achievable through best practice such as Good Agricultural 
Practice (GAP) and Good Manufacturing Practice (GMP) following an appropriate risk 
assessment" .90 Annex 1 of  CODEX STAN 193 -1995 also specifies  that "MLs should be set at a level 
which is (slightly) higher than the normal range of variation in levels in food and feed".91 The 
Codex Radionuclide GLs elaborated by the CCFAC also build in various conservative assumptions.92 
The establishment of the GLs  rely on "the most  conservative values of the radionuclide -specific 
and age -specific ingestion dose coefficients"93 set by the IAEA in 1996 and based on the relevant 
ICRP publications; address infants and adults separately assuming respective consumptions o f 
200 kg and 550 k g of food per year; and assume that 10% of the diet consists of imported food 
which is contaminated giving an import to production factor of 0.1. In addition, the calculations of 
the Codex Radionuclide GLs are rounded downwards: for examp le, 1,400 Bq/kg fo r Cs-137 for 
other than infant foods has been rounded to 1,000 Bq/kg. For the one -year exposure assessment, 
"it is conservatively assumed that during the first year after major environmental radioactive 
contamination caused by a nuclear o r radiological eme rgency it might be difficult to readily replace 
foods imported from contaminated regions with foods imported from unaffected areas"94. 
2.3.1.2   Potential revision of the Codex Radionuclide GLs  
2.30.   After the FDNPP accident , the Codex Committee on Contam inants in Food (CC CF)95 
considered whether the revision of the Codex Radionuclide GLs was necessary. In March 2012, the 
CCCF established an Electronic Working Group (EWG) to review the Codex Radionuclide GLs in 
food and develop guidance on their interpretat ion and applicatio n. The Netherlands and Japan co -
chaired this group , which was open to all members and observers.96 In July 2013, the CCCF 
agreed to keep the levels and approach used in the 2006 Codex Radionuclide GLs. As an Inter -
agency Working Group betw een the IAEA, FAO and WHO had launched work on standards applied 
to radioactive substances in food, the CCCF also agreed to discontinue the work on development of 
guidance to facilitate the application and implementation of the GLs. The Committee noted tha t it 
"could decide  to start new work on radionuclides as necessary" after the completion of the work by 
the Inter -agency Working Group.97  
2.31.   One year later, the CCCF re -established an EWG whi ch the Netherlands and Japan 
co-chaired to follow -up on the conclusi ons and recommenda tions of the Inter -Agency Working 
Group . In particular , the EWG considered  technical issues relating to the stage of food production 
to which the Codex guideline levels apply, and the development of sampling plans to enhance the 
implement ation of the Codex Radionuclide GLs. The CCCF again requested the EWG to look into 
the devel opment of guidance to facilitate the interpretation and implementation of the Codex 
Radionuclide GLs. Upon discussing the work of the EWG in March 2015, the CCCF no ted that the 
ICRP was currently reviewing dose coefficients for ingestion of radionuclides t o assess public 
exposure and the associated health risk from intake of radionuclides in food. The CCCF agreed that 
"any possible new work should be delayed until su ch time as the outcome of the review of the 
                                                
90 CODEX STAN 193 -1995, (Ex hibit JPN -32), para. 1.3.1.  
91 CODEX STAN 193 -1995, (E xhibit JPN -32), p. 7.  
92 CODEX STAN 193 -1995, (Exhibit JPN -32), p.52.  
93 Codex Secretariat Fact Sheet on Codex Radionuclide GLs, (Exhibit JPN -11.1(24)).  
94 CODEX STAN 193 -1995, (Exhibit JPN -32), p.52.  
95 In 2006, the CCFAC was split into two committees: food additives (CCFA) and contaminants in foods 
(CCCF).  
96 Codex committee on Contaminants in Food, Report of the Sixth Session of the Codex Committee on 
Contaminants in Foods, 26 -30 March 2012, (REP12/CF), (Ex hibit KOR -178).  
97 Codex committee o n Contaminants in Food, Report of the Seventh Session of the Codex Committee 
on Contaminants in Foods, 8 -12 April 2013, (REP13/CF), (Exhibit KOR -179).  WT/DS495/R  
 
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  ICRP became available, which might lead to the r evision of the Codex GLs in the GSCTFF."98 The 
ICRP review is expected to be finalized by 2018. Since its 2015 decision, the CCCF has receive d no 
further information  that might  trigger the review of the provisions for radionuclides in the 
GSCTFF.99  
2.32.   The curr ent status of the Codex Radionuclide GLs is an indication of the inter -agency 
collaboration on these standards and confirms that the work of each organization canno t be seen 
in isolation.  
2.3.2   The United Nations Scientific Committee on the Effects of Atomic Ra diation 
(UNSCEAR)  
2.33.   The UNSCEAR, established by the United Nations in 1955, is responsible for reporting on the 
exposure of people to radiation worldwide and for asse ssing the scientific information on the 
effects of exposure to ionizing radiation.100 The UNSC EAR publishes reports through the 
collaboration of scientists who study and evaluate data and literature from governments and 
international and non -governmental org anizations that submit data and engage in the work of the 
Committee. Since 2006, the UNSCEAR  has produced, at least every two years, a report on the 
sources, effects and risks of  ionizing radiation comprising  two volumes with scientific annexes. The 
UNSCEA R documents constitute major sources of information for governments and organizations; 
for example, the ICRP (see section 2.3.3 ) relies heavily on the scientific data collected in the 
UNSCEAR reports to develop its own recommendations on r adiological protection.  
2.34.   The UNSCEAR played an active role in assessing the levels and effects of radiation exposure 
following the FDNPP accident. In May 2011, the Committee launched a two -year assessment 
study, the results of w hich were reported at the Ge neral Assembly in October 2013 and published 
as scientific Annex A to the UNSCEAR 2013 Report.101 The UNSCEAR published two "white papers" 
in 2015102 and 2016103 in order to review its assessment following the FDNPP accident and guide  
the Committee's future prog ramme of work, incorporating the evaluation of new data and 
publications.104  
2.3.3   The International Commission on Radiological Protection (ICRP)  
2.35.   Founded in 1928, the ICRP is an international, independent, non -governmental organization  
- formally a charity regist ered in the United Kingdom - that brings together scientists and policy 
makers from approximately 30 countries across all continents. Its mandate is to provide 
recommendations and guidance on all aspects of radiological protecti on, also referred to as 
radiation protection and defined by the IAEA as "the protection of people from harmful effects of 
exposure to ionizing radiation, and the means for achieving this".105 The ICRP looks at radiological 
protection both with regard to the protection of people – for example to help prevent cancer, 
diseases and effects associated with exposure to ionizing radiation – and with regard to the 
protection of the environment.106 The ICRP operates committees that focus on different areas of 
radiologic al protection. For example, the work of Committee 2 focuses on "Doses From Radiation 
                                                
98 Codex committee on Contaminants in Food, Report of the Ninth Session  of the Codex Committee on 
Contamin ants in Foods, 16 -20 March 2015, (REP15/CF), (Exhibit KOR -181), paras. 128 -134. 
99 Codex's response to Panel question No. 9.  
100 See website of the United Nations Scientific Committee on the Effects of Atomic Radiation, About Us, 
http://www.unscear.org/unscear/en/about_us.html  (accessed 24 February 2017).  
101 UNSCEAR 2013 Report, Sources, effects and risks of ionizing radiation  Annex A: Levels and effects of 
radiat ion exposure due to the nuclear acc ident, ("2013 UNSCEAR Report Annex A") (Exhibit JPN -210). 
102 UNSCEAR , "Developments since the 2013 UNSCEAR Report on the Levels and Effects of Radiation 
Exposure due to the Nuclear Accident Following the Great East -Japan E arthquake and Tsunami (2015)" 
(2015  UNSCEAR White Paper), (Exhibit JPN -211).  
103 UNSCEAR , "Developments since the 2013 UNSCEAR Report on the Levels and Effects of Radiation 
Exposure due to the Nuclear Accident Following the Great East -Japan Earthquake and Ts unami (2016).  
104 Both reports and subsequent updates are a vailable at: 
http://www.unscear.org/unscear/en/publications.html  
105 See website of the International Atomic Energy Agency (IAEA Webs ite), IAEA Safe ty Glossary 
Terminology Used in Nuclear Safety and Radiation Protection , 2016 Revision, https://www -
ns.iaea.org/downloads/standards/gloss ary/iaea -safety -glossary -draft-2016.pdf  
106 See website of the International Commission on Radiological Protection, About ICRP,  
http://www.icrp.org/index.asp  (last accessed 24 February 2017).  WT/DS495/R  
 
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  Exposure" and one of its tasks is to develop dose coefficients  (see paragraph 2.8) for the 
assessment of internal and external  radiation exposure.  
2.36.   The ICRP dose coefficients are a key component in the establishment of radionuclide -specific 
thresholds in food as they provide the radiation damage from ingestion of a certain type of 
radionuclide, and are relied upon by Codex and ma ny regulators in their determination of 
radionuclide -specific thresholds applied to food commodities. In addition to determining dose 
coefficients for the different radionuclides, the ICRP has also set forth  a recommended annual 
effective dose of radiation  from consumption of food of 1 mSv per year utilized by Codex in its 
determination of guideline levels for radionuclides (see paragraph  2.32).  
2.37.   While most ICRP publications address particular areas within radiol ogical protection, a few 
constitute "fundamental recommendations". When preparing its recommendations, the ICRP 
considers the fundamental princ iples and quantitative bases upon which appropriate radiation 
protection measures can be established.107 In establi shing its recommendations, the ICRP uses the 
data from the UNSCEAR reports (see section  2.3.2) and works closely with many other 
organiza tions that contribute to the international system of radiological protecti on such as the 
IAEA (see section  2.3.4 ). The latest fundamental ICRP recom mendations are contained in its 
Publication 103.108 The ICRP dose coefficients for the ingestion and inhalation of radionuclides are 
contai ned in its fundamental recommendations, and the ICRP is currently revising them to 
incorporate the scientific knowledge  gained in the last few decades.109 Based on ICRP 
recommendations, national protection bodies are responsible for formulating specific advi ce, codes 
of practice, or regulations best suited to the needs of their country.  
2.3.4   The International Atomic Energy Agenc y (IAEA)  
2.38.   The IAEA, established in 1957, is an autonomous international organization within the 
United Nations system whose mandate is to "work with (…) Member States and multiple partners 
worldwide to promote safe, secure and peaceful nuclear technologies. "110 The IAEA's work 
especially focuses on the development of international standards in the field of nuclear safety, 
primarily based on th e recommendations of the ICRP (see section 2.3.3). The IAEA cooperates 
with other international organizations; for instance, a Joint Division of Nuclear Techniques in Food 
and Agriculture was created in 1964 wit h the FAO. The IAEA also plays a proactive role in ensu ring 
reliable and timely analysis of samples for radioactivity by coordinating activities, developing 
standardized methods for sample collection and analysis, and organizing inter -laboratory 
comparison  for external analytical quality control.111  
2.39.   Following t he FDNPP accident, the IAEA provided information and advice to Japan through 
various missions it made to the country and reports as well as the monitoring of Japanese 
measures, including inter -laborato ry comparisons with Japan of sea water, sea sediments a nd 
fishery products near the FDNPP starting in September 2014. A report by the IAEA Director 
General accompanied by five technical volumes on the FDNPP accident was published in 2015 
based on the evalu ation of the latest available data.112 The report found a  number of failures in the 
design of the FDNPP that contributed to the accident.113 Japan provides relevant ministries and 
organizations with information on the FDNPP situation on a regular basis such as  its monthly report 
                                                
107 ICRP's response t o the Panel questions.  
108 ICRP, "The 2007 Recommendations of the International Commission on  Radiological Protection", 
ICRP Publication 103. Annals of the ICRP, 37(2) (2007) (ICRP Publication 103: 2007  Recomme ndations), 
(Exhibit  KOR-1), (Exhibit ICRP -3). 
109 The results of this revision process, which is expected to be finalized by 2018, will be part of ICRP 
Publication 130 Occupational Intakes of Radionuclides (Part 1) and will supersede previous ICRP publicatio ns 
on the same subject.  
110 See IAEA website, History,< https://www.iaea.org/about/overview/history >, accessed 
24 February  2017).  
111 See IAEA website, Reference Products for Environment and Trade, 
https://nucleus.iaea.org/rpst/referenceproducts/al mera/index.htm  (accessed 24 February 2017).  
112 International Atomic Energy Agency, "The Fukushima Daiichi Accident: Report by the Director 
General" (August 2015) (2015 IAEA DG Report), (Exhibit JPN -2). 
113 2015 IAEA DG Report , (Exhibit JPN -2). WT/DS495/R  
 
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  on the discharge record and the sea  water monitoring results at the FDNPP.114 Japan's Nuclear 
Regulatory Authority  (NRA)  provides updates to the IAEA.  
2.4  The Fukushima Dai -ichi Nuclear Power Plant ( FDNPP ) accident  
2.40.   The Great East Japan Earthq uake, measuring 9.0 on the Richter scale, struck the coast of 
Japan in the early afternoon of 11 March 2011.115 The earthquake triggered a tsunami, and caused 
great loss of life, and widespread devastation in Japan. More than 15,000 people were killed, over 
6,000 were injured, and around 2,500 people were repo rted to be missing. Considerable damage 
was caused to buildings and infrastructure, particularly along Japan 's north -eastern coast.116 In 
particular the human impact of the Fukushima Dai -ichi accident was immense. The 2015 IAEA DG 
report explains that, as of  the time of writing, there were still more than 100,000 evacuees from 
the region due to the release of radionuclides to the environment.117  
2.41.   The tragedy of the devastating earthquake and tsunami was furth er compounded by the 
ensuing nuclear emergency.118 Approximately 40 minutes after the earthquake, the tsunami 
reached the FDNPP , operated by Tokyo Electric Power Company (TEPCO).119 The tsunami caused 
substantial damage to the operational and safety infrastruc ture of the site, including to the 
replacement power facilities.120 As a result, five of the six nuclear reactors lost all cooling power.121 
Due to this, there was overheating of the reactor cores in Units 1 -3, nuclear fuel melting and the 
breaching of the thr ee containment vessels in these units. Hydrogen was r eleased from the reactor 
pressure vessels  and the primary containment vessels  (PCV) , leading to explosions inside the 
reactor buildings in Units 1, 3 and 4 that damaged structures and equipment and injur ed 
personnel. At the point at which the pressure insi de the primary containment vessel exceeded the 
design pressure, the authorities decided that the only way to manage the pressure inside the 
containment vessels was a deliberate release of material, inclu ding radioactive material , into the 
environment.122 This process is known as venting. As well as intentional venting, there were also 
uncontrolled releases of radioactive material. This radioactive material was released from the plant 
into the atmosphere and  was deposited on land and into the ocean.123 There wer e also direct 
releases into the ocean , which occurred up to the date of Panel establishment and beyond . 124 
People within a radius of 20 km of the site and in other designated areas were evacuated, and 
those within a radius of between 20 to 30 km were instru cted to shelter before later being advised 
to voluntarily evacuate. Restrictions were placed on the distribution and consumption of food and 
the consumption of drinking water.125 
2.42.   One month after the accide nt, the Japanese government formally declared an Inte rnational 
Nuclear and Radiological Event Scale (INES) rating of Level 7 for the FDNPP accident. According to 
the IAEA, Level 7 represents an "event resulting in an environmental release corresponding to a 
                                                
114 Japan Ministr y of Foreign Affairs, "Briefing session on the recent updates regarding TEPCO's 
Fukushima Daiichi Nuclear Power Station (NPS)" (18 September 2015), (Exhibit JPN -53) available at: 
http://www. mofa.go.jp/dns/inec/page22e_000751.html  (last accessed 4 July 2017).  
115 Japan's first written submission, para. 10; Korea's first written submission, para. 12.  
116 2015 IAEA DG Report, (Exhibit JPN -2), p. 19. 
117 2015 IAEA DG Report, (Exhibit JPN -2), [foreword ]. 
118 World Health Organization, Western Pacific Region, "The Great East Japan Earthquake – A Story of 
Devastating Natural Disaster, A Tale of Human Compassion" (2012), (Exhibit JPN -1), p. 48.  
119 2015 IAEA  DG Report, (Exhibit JPN -2), p. 30.  
120 Korea's first w ritten submission, para. 12.  
121 2015 IAEA DG Report, (Exhibit JPN -2), p. 31.  
122 TEPCO, "Fukushima Nuclear Accident: Investigation Report (Interim Report - Supplementary 
Volume)", 2 December 2011 (Exhibit K OR-10), p. 28.  
123 2015 IAEA DG Report, (Exhibit JPN -2), [foreword], p. 19.  
124 See Japan's response to advance Panel question No. 8. See also Dr K. Buesseler, "Fukushima 
radiation continues to seep into the Pacific Ocean", 9 March 2016, (Exhibit KOR -279).  
125 2015 IAEA DG Report, (Exhibit JPN -2), p. 1.  Certain p roduct -specific distribution restrictions in 
Japan remain in place and can be found at 
http://www.mhlw.go.jp/english/topi cs/2011eq/index_food_press.html ; Japan's  response to Panel question 
No. 28. WT/DS495/R  
 
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  quantity of radioactivity radiologically equivalent  to a release to the atmosphere of more than 
several tens of thousands of terabecquerels of I -131".126  
2.43.   Figure 2 shows a  layout of the FDNPP with the six reactor buildings (circles numbered 1 
through 6) an d associated turbine buildings (squares numbered 1 through 6). Figure  3 provides a 
detailed view of a reactor and turbine building unit; these constitute a boiling water r eactor.  
Figure 2 : Layout of Fukushima Daiichi Nuclear Power Plant  
 
Source: Internati onal Atomic Energy Agency, "The Fukushima Daiichi Accident - Technical Volume 1 – 
Description and Context of the Accident" (August 2015) ( "2015 IAE A DG Report, Technical V olume 1 "), (Exhibit 
JPN-7), p. 13.  
 
                                                
126 International Atomic Energy Agency, "Fukushima Nuclear Accident Update Log: IAEA Briefing on 
Fukushima Nuclear Accident" (12 April 2011), (Exhibit KOR -11) available at 
https://www.iaea.org/newscenter/news/fukushima -nuclear -accident -update -log-15. 
WT/DS495/R  
 
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  Figure 3 : Boiling water reactor at the FDNPP  
 
Source: 2015 IAEA DG Report, Technical Volume 1, (Exhibit JPN -7), p. 7. 
 
2.5  Radioactive contamination from the FDNPP  
2.5.1   The initial release  
2.44.   As noted above, the explosions in the reactor buildings , the venting, and direct release of 
contaminated water into the ocea n at the time of the accident released radioactive material in the 
atmosphere, land, and ocean.   
2.45.   The amount of radionuclides released, also called the "source term" , comp rises 
radionuclides released from the cores and confining structures into the environ ment during and 
after the accident at the FDNPP. Source term analyses indicate that the major releases that 
contributed most to the radiological consequences on Japanese t erritory occurred on 15 March 
2011. The releases were likely related to release of ac tivity in Unit 2  due to core melting and  
subsequent loss of PCV integrity early in the morning, or to PCV venting at Unit 3. Other large 
peaks of activity release are thought to have occurred in the afternoon on 12 March 2011 
(explosion at Unit 1), at noon  on 14 March 2011 (explosion at Unit 3),  and late at night on the 
same day (probably due to venting of Unit 3).127 
2.46.   Based on estimates, approximately 1 7.5 PBq of Cs-134 and 15 Pbq of Cs-137 w ere released 
via the atmospheric fallout, 5 PBq of Cs -137 was direct ly discharged into the envir onment, 
15-20 TBq/year of Cs -137 is released via ongoing groundwater discharge, and 10 -12 TBq/year is 
released through ongoing river runoff.128 The total atmospheric relea se of I -131 was estimated to 
be approximately 150 -160 PBq.129 In total, approximately 1.0 -2.4 x 109 Bq of Pu -239 and 240 was 
released into the environment from the FDNPP reactors.130 Most of the Sr -90 released from the 
FDNPP was directly discharged into the North Pacific, with estimates of total inventories ranging 
                                                
127 2015 IAEA DG Report, Technical Volume 1, (Exhibit JPN -7), p. 143.  
128 K. Buesseler et al., "F ukushima Daiichi -Derived Radionuclides in the Ocean: Transport, Fate, and 
Impacts", 30 June 2016.  First published online as a Review in Advance, ( Buesseler et al. (2016) , 
(Exhibit  KOR-134), p. 3.  
129 P.P. Provinec, K. Hirose and M. Aoyama, Fukushima Acciden t: Radioactivity Impact on the 
Environment  (2013), (E lsevier, 2013), (Exhibit KOR -97), p. ix.  
130 Buesseler et al. (2016) , (Exhibit KOR -134), p. 6.  
WT/DS495/R  
 
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  from 0.04 to 1.0 PBq.131  Estimates to this day have varied and there is no definitive calculation of 
the amounts released.132  
2.5.1.1   Releases to the atmosphere  
2.47.   In the early phase of the accident, the noble gases krypton -85 (Kr -85) and xenon -133 
(xe-133), with half -lives of 10.76 years and 5.25 days, respec tively, contributed to external 
exposure from the plume of the atmospheric releases. Around 6,000 –12,000 PBq of Xe -133 are 
estimated to have been released (or 500 –15 000 PBq, if early estimates are included in the 
evaluation)133. Iodine -131 (I -131, half -life of 8.02 days) and caesium -137 (Cs -137, half -life of 
30.17 years were "the two most significant radionuclides from the perspective of exposures of 
people and the environment"134 The estimated releases to the atmosphere  ranged from 100 to 500 
PBq for I -131 an d from 6 to 20 PBq for Cs -137. The mean total activity of I -131 released was 
around 100 -400 PBq, and that of Cs -137 was around 7 –20 PBq (or 90 –700 PBq and 7 –50 PBq, if 
early estimates are included).135 Other radionucli des were also released in amounts relati ve to 
their volatility.136 Estimates for the release of other radionuclides, such as strontium and 
plutonium, have been more limited. The IRSN estimated the amount of Sr -90 released into the 
atmosphere to be 0.003 PBq.  However, the IRSN added the qualificati on that "estimates of the 
radioactivity released by these radionuclides remain rough due to the lack of a sufficient body of 
measurements and information on the actual condition of the damaged reactors."137 The Nuclear  
and Industrial Safety Agency of Japan e stimated the amount of Sr -90 released into the 
atmosphere to be 0.14 PBq, and the amount of Pu -238, Pu -239, Pu -240 to be 0. 025 TBq.138 
2.48.   The fission products were released from the overheated reactor core, their vapours were 
transported by flows of gas or steam into cooler regions of the PCV where they condensed into 
aerosols. These aerosols either retained in the containment vessel or released into the 
environment through leaks. Aerosols formed and dispersed from the acc ident sooner or later 
deposit on surfaces. Three different release paths  to the environment were distinguished at the 
FDNPP: (i) design leakage into the reactor building (where these aerosols could remain for a long 
time); (ii) containment venting where ra dioactive products (which had already been scrubbed 
within the water poo l) were released unfiltered to the environment through vent stacks; and (iii) 
containment failure of three of the PCVs in three FDNPP units whereby significant amounts of 
radioactive a irborne aerosols leaked into the reactor building and eventually into th e 
environment.139 
2.49.   UNSCEAR reported that, unlike the Chernobyl accident, where less volatile elements (such 
as strontium and plutonium) were released in relatively larger amounts directly  into the 
atmosphere as a result of the initial explosion and physical d estruction of parts of the core, such 
mechanisms did not occur in the FDNPP accident. According to UNSCEAR , the volatility of the 
elements, and the extent to which they were retained w ithin the containment by other 
mechanisms (for example the suppression p ool), were the principal determinants of the amounts 
released.140 The IAEA confirms that the atmospheric release was dominated by the volatile 
isotopes of iodine and caesium because of t heir low vapour pressure, which resulted in their 
virtually complete rel ease from the nuclear fuel during the core meltdown. The IAEA also indicates 
that the release of strontium was three to four orders of magnitude less than the release of 
caesium. Plutonium was released to the environment as a result of the FDNPP accident; however, 
                                                
131 Buesseler et al. (2016) , (Exhibit KOR -134), p. 6.  
132 Buesseler et al. (2016) , (Exhibit KOR -134), p. 4, Table 1.   
133 2015 IAEA DG Report, (Exhibit JPN -2), p. 107.  
134 2015 UNSCEAR White Paper, (Exhibit JPN -211), p. 4.  
135 2015 IAEA DG Report,  (Exhibit JPN -2), p. 107.  
136 UNSCEAR 2013 Report Annex A, (Exhibit JPN -210), p. 49 . 
137 Institut de radioprotection et de sûreté nucléaire , "Fukushima, one year later: Initial analyses  of the 
accident and its consequences" (12 March 2012), IRSN_Fukushima -1-year-later_2012 -003.pdf, (Exhibit KOR -
93), p. 48.  
138 Japan, Nuclear and Industrial Safet y Agency, Table 5: Estimates of the Amount (Bq) of Radioactive 
Materials Released into the Atmos phere During the Period Subject to the Analysis, (Exhibit KOR -94); J. Zheng, 
K. Tagami and S. Uchida, "Release of plutonium isotopes from the Fukushima Daiichi Nuclear Power Plant 
accident", Environmental Science & Technology, Vol. 47, No. 17 (2013), pp. 9 584-9595, (Exhibit KOR -95). 
139 2015 IAEA DG Report Technical Volume 1, (Exhibit JPN -7), pp. 142 -143. 
140 UNSCEAR 2013 Report Annex A, (Exhibit JPN -210). WT/DS495/R  
 
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  the amounts released were more limited than the other radionuclides.141  Data indicate that 
plutonium release due to the core melts in the FDNPP did not notably increase the pre -existing 
environmental distribution of plutonium. The chemical composit ion of the radionuclides released 
had a direct consequence on the land contamination, which was dominated by iodine and 
caesium.142  
2.50.   The release of lower volatility radionuclides such as  strontium, barium and plutonium were 
much lower than those of iodine an d caesium as confirmed by measurements of their levels in the 
environment.143 Neutrons were also detected near the main gate of the plant (which is 
approximately 1 km away from Units 1 –3). It is estimated that the neutrons came from the 
spontaneous nuclear f ission of radionuclides that could have been released as a result of damage 
to the reactor core.144 On a number of occasions, the meteorological conditions were such that 
radionuclides r eleased to the atmosphere were dispersed over mainland Japan, and then w ere 
deposited on the ground by means of dry deposition and wet deposition with rain or snow.145 The 
main deposition occurred to the north -west of the FDNPP site, but significant depositi on also 
occurred to the north, south and west of the FDNPP site.146 A sign ificant amount of atmospheric 
release was also deposited in the ocean and on land, as discussed in the sections below.  
2.5.1.2   Releases to the ocean  
2.51.   The ocean received two types of radionuclid e deposits. First, atmospheric releases dispersed 
over the North Pacific  Ocean and fell on the oceanic surface layer. Second, there were direct 
releases and discharg es into the Pacific Ocean at the site, with the primary source being highly 
radioactive wat er from a trench at the FDNPP. The peak radioactive releases were observ ed at the 
beginning of April 2011. The direct releases and discharges of I -131 into the sea were estimated to 
be 10 –20 PBq. The direct releases and discharges of Cs -137 were estimated by most analyses to 
be in the range of 1 –6 PBq, but some assessments rep orted estimates of 2.3 –26.9 PBq.147 In 
addition to I -131 and Cs -137, other radionuclides were released to the ocean directly and 
indirectly. Radionuclides of low volatility such as stron tium and plutonium were measured in 
seawater and sediments. Estimates of  direct release of Sr -90 to the ocean range from 0.04 to 
1 Pbq, while plutonium radioisotopes in seawater have generally been below limits of detection.148 
2.52.   There have been reports of additional  spills of liquid radioactive waste from the FDNPP into 
the ocean  causing Sr -90 activities to exceed those of Cs -137 in the ocean near the FDNPP for short 
periods of time. It is hypothesized that the decrease in the ratio of caesium to strontium is a result 
of continuing accidental spills of strontium or the higher mobi lity of strontium. While the ratio has 
been decreasing, caesium is still in greater quantities than strontium.149 
2.5.1.3   Dispersion  
2.53.   The effect of a release of radionuc lides is not necessarily l ocaliz ed, but may be dispersed 
through the atmosphere and ocean currents . Extensive measurements of activity concentration of 
I-131, caesium -134 (Cs -134) and Cs -137 in the environment, including in air, soil, sea water, 
sediments and biota, were performed and have been used for estimating the dispersion of the 
releases.150 The I AEA report includes a variety of theoretical models used to estimate the 
dispersion patterns of the radionuclides released during the accident at the FDNPP.  
                                                
141 This con clusion finds support in the statement of the IAEA that the fact that concentration of 
plutonium  isotopes found at the FDNPP site corresponded to the background level was an indication of the 
limited nature of the release of plutonium during the accident. See 2015 IAEA DG Repo rt Technical Volume 1, 
(Exhibit  JPN-7), p. 149.  
142 2015 IAEA DG Report Techn ical Volume 1, (Exhibit JPN -7), pp. 148 -149. 
143 2013 UNSCEAR Report Annex A, (Exhibit JPN -210), pp. 40 -41. 
144 2015 IAEA DG Report, (Exhibit JPN -2), p. 107.  
145 2015 UNSCEAR White Paper, (Exhibit JPN -211), p. 4.  
146 2015 UNSCEAR White Paper , (Exhibit JPN -211), p.  4. 
147 2015 IAEA DG Report, (Exhibit JPN -2), p. 107.  
148 2013 UNSCEAR Report Annex A,  (Exhibit JPN -210); see also 2015 IAEA DG Report Technical Volume 
1, (Exhi bit JPN -7), pp. 148 -149; and Expert Meeting Transcript, pp. 6 -8. 
149 Buesseler et al. (2016), ( Exhibit  KOR-134), p. 6. The Cs -137 to Sr -90 ratio has gone from 12.5 at 
the FDNPP site in June 2011 to 3.8 in 2013. Korea's second written submission, para. 38.  
150 2015 IAEA DG Report, (Exhibit JPN -2), p. 107.  WT/DS495/R  
 
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  2.5.1.3.1   Atmospheric dispersion  
2.54.   The transport of the atmospheric radioactive releases was directed mainly t o the east and 
north of Japan, following the prevailing wind directions, and then around the globe.151 According to 
the models that were used to estimate the atmospheric transport of the  various radionuclides and 
their deposition patterns, the activity conce ntration in the atmosphere decreased noticeably with 
increase in distance from the FDNPP.152 Highly sensitive radiation monitoring networks detected 
some radioactivity attributable to th e accident as far away as Europe and North America.153 
2.55.   Months after the FD NPP accident, Japan 's Science Ministry reported that caesium had 
contaminated 11,580 square miles of the land surface of Japan, and about 4,500 square miles 
were found to have radiatio n levels that exceeded Japan 's allowable exposure rate of 
1 mSv/year.154   
2.5.1.3.2   Ocean dispersion  
2.56.   Most of the released and discharged radionuclides that entered into the Pacific O cean from 
the FDNPP site moved eastward with the Kuroshio current155 and were transpor ted over large 
distances via the North Pacific Ocean gyre.156 A number of oceanic transport models have been 
used to assess dispersion patterns of radionuclides in the ocean.157 Studies have shown that 
dispersion within the ocean, for example whether the radio nuclide stays on the surface or sinks to 
the sediment, varie s according to the type of radionuclide. Testing in various areas of the ocean 
can be used to confirm whether radionuclides from the FDNPP accident have been dispersed there. 
For example, the high  caesium -activity ratios in samples from the North Western P acific taken two 
years after the accident suggest that these samples were contaminated by caesium released from 
the FDNPP. On the other hand, plutonium fingerprints from the same area suggest that  the 
plutonium contamination found is predominantly from oth er sources such as fallout from nuclear 
weapons use and testing.158  
2.57.   The Fukushima prefecture and neighbouring prefectures have several river systems that 
flow from contaminated upland forests to co astal plains, and ultimately empty into the Pacific 
Ocean. S tudies estimate that 17.1 TBq of total radionuclides were released into the Pacific Ocean 
from 1 June to 30 September 2012, which is only a fraction of the radiocaesium inventory of the 
upland for ests of the Fukushima prefecture.159 Some scientists hypothesi ze that river catchments 
will be a longer -term, ongoing source of radiocaesium to estuaries and coastal areas.160 
                                                
151 2015 IAEA DG Report, (Exhibit JPN -2), p. 11.  
152 2015 IAEA DG Report, (Exhibit JPN -2), pp. 107 -108. 
153 2015 IAEA DG Report, (Exhibit JPN -2), p. 108.  
154 Asahi Shimbun , "Contaminated regions having radiation doses of 1 mSv/year account for 3% of 
Japanese territory", 11 October 2011, (Exhibit KOR -28); S. Starr, "T he Implications of The Massive 
Contamination of Japan with Radioactive Cesium" (2013), 
http://www.ratical.org/radiation/Fukus hima/StevenStarr.html, (Exhibit  KOR-29). 
155 The Kuroshio current is a northward flowing ocean current on the western side of the Nor th Pacific 
Ocean that flows past the FDNPP.  
156 The North Pacific Ocean gyre is one of the five major oceanic gyres, covering most of the North 
Pacific Ocean;  it has a clockwise circular pattern and is formed by the North Pacific Ocean current to the north, 
the California current to the east, the north equatorial current to the south, and the Kuroshio current to the 
west.  
157 2015 IAEA DG Report, (Exhibit JPN-2), p. 109.  
158 W. Bu, M. Fukuda, J. Zheng, T. Aono, T. Ishimaru, J. Kanda, G. Yang, K. Tagami, S. Uchida , Q. Guo, 
M. Yamada, "Release of Pu isotopes from the Fukushima Daiichi Nuclear Power Plant accident to the marine 
environment was negligible", Envir onmental Science & Technology, (2014); Vol. 48, (Exhibit JPN -11.1(10)), 
pp. 9070-9078. See also para. 7.209.  
159 Y. Yamashiki, Y. Onda, H. Smith, W. Blake, T. Wakahar a, Y. Igarashi, Y. Matsuura, K. Yoshimura, 
"Initial Flux of Sediment -Associated Radiocesium to the Ocean from the Largest River Impacted by Fukushima 
Daiichi Nuclear Powe r Plant", Scientific Reports , 21 November 2013 (Exhibit KOR -185), p. 2.  
160 O. Evrad, C.  Chartin, Y. Onda, H. Lepage, O. Cerdan, I. Lefevre, S. Ayrault, "Renewed Soil Erosion 
and Remobilization of Radioactive Sediment in Fukushima Coastal Rivers After the 20 13 Typhoons", Scientific 
Reports , 3 April 2014, (Exhibit KOR -184).  WT/DS495/R  
 
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  2.5.2   Releases after the initial accident  
2.58.   The releases of radionuclides occurring at the m oment of the accident were not the only 
releases from the FD NPP. There have been a number of leakages and releases into the ocean 
subsequent to the initial March 2011 accident. These release events, their dates, their routes and 
the amount of radioactive m aterial released into the ocean are matters of dispute betwe en the 
parties. According to the exhibits provided by Japan and Korea, more than 70 release events of 
varying magnitudes have occurred at multiple areas of the power plant with differing possible 
routes to the ocean between April 2011 and September 2015.161 While some release events are 
reported to have been retained inside dikes or buildings, others are reported to have flowed out 
into the ocean. There is no evidence of additional atmospheric releas es on the record of this 
dispute.  
2.59.   After the initial acciden t, as a result of the on -going nuclear emergency in the reactors 
additional releases of radionuclide -contaminated water from the FDNPP occurred . In August 2013, 
media reports cited a Japanese ener gy ministry official as stating that the government estimate d 
that up to 300 tonnes of radioactive water were being released into the ocean each day. TEPCO, 
for its part, indicated that this was only a guess and that the exact figure was unknown.162 TEPCO 
has issued press releases disclosing release events. In most o f these press releases, TEPCO 
maintained that the radioactive materials either did not reach the ocean or did not cause 
significant changes in radioactivity measured in seawater.163 Japan c ites to contamination levels 
detected in the sea water at the FDNPP  port around the time of these releases  to support its 
position .164 The parties disagree on whether every release event was disclosed and whether certain 
releases have been contained or reached the oc ean.165 The parties agree that some of the release 
events between 1 April 2011 and 29 May 2015 have been confirmed to have reached the ocean.166 
2.60.   Radionuclides from the damaged fuel located in the reactor vessel or in the pedestal area of 
the PCV are continuous ly dissolved once they come into contact with wat er.167 As a result of the 
dissolution of radionuclides, contaminated water has been accumulating in tanks stored at the 
FDNPP168 and  certain leaks have reached the ocean . Moreover, when there is heavy rain, mor e 
caesium, strontium, and other isotopes from the  FDNPP are carried into the ocean – whether 
carried in groundwater or from the run -off of sediment.169 Groundwater has been continuously 
flowing from the hills into the FDNPP where it interacts with damaged fu el and becomes 
contaminated.170 Researchers have es timated that the release of Sr -90 through contaminated 
water has continued and that FDNPP was leaking Sr -90 at a rate of 2.3 -8.5 GBq/day into the 
Pacific Ocean in September 2013.171 In particular, the Sr -90 le vel in seawater was found to be 
                                                
161 Japan's and Korea 's responses to Panel question No. 8.  
162 BBC News, "Fukushima leak: Japan government 'to take measures'", 8 August 2013, 
http://www.bbc.com/news/world -asia-23602362 , (Exhibit KOR -3). 
163 Japan's response to Panel question No. 8, Table 3 describing 14 leak events between 27 June 2011 
and 9 September 2015 and Table 4 describing 50 leak events between 29 June 2011 and 2 9 Septembe r 2015 
as being retained inside the building, the dike or not having an available route to the ocean.  
164 Japan's response to Panel question No. 9(i).  
165 J. Adelman and Y. Okada, "Tepco President Apologizes for Fukushima Leak Disclosure Delay", 
Bloomberg , 26 July 2013, http://www.bloomberg.com/news/articles/2013 -07-26/tepco -president -apologizes -
for-fukushima -leak-disclosure -delay  ,(Exhibit KOR -43). See also Korea's and Japan's responses to Panel 
question No. 8 where Korea maintains that 100 tons of contaminated water leaked from a storage tank and 
flowed into the ocean on 19 -20 February 2014 while Japan maintains the water l eakage at the upper part of a 
tank did not flow into the ocean.  
166 Japan's response to Panel question No. 8, Table 2.  
167 Korea's second written submission, para. 26.  
168 Agency for Natural Resources and Energy, Presentation on "Current status of strontium remo val from 
contaminated water stored in tanks" (2013 -2016), (Exhibit JPN -146).  
169 Woods Hole Oceanographic Institution, "Fukushima Site Sill Leaking After Five years, Research 
Shows",  7 March 2016, available at https://www.whoi.edu/news -release/fukushima -site-still-leaking , 
(Exhibit  KOR-164).  
170 M. Castrillejo, et al., "Reassessment of 90Sr, 137Cs, and 134Cs in the Coast off Japan Derived  from 
the Fukushima Dai -ichi Nuclear Accident"  (2016), ( Castrillejo et al. (2016)) Environme ntal Science & 
Technology, Vol.  50, No. 1, (Exhibit KOR -49),TEPCO, "Current Strategy to Respond to the Phenomenon of 
Ground Water Contamination: The Flow of Groundw ater around Units 1 -4", 8 August 2013, (Exhibi t KOR -106), 
p.18. 
171 Castrillejo et al. (2016) , (Exhibit KOR -49), pp. 173 -180. WT/DS495/R  
 
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  400 Bq/l in Decem ber 2011 and in 850 Bq/l in March 2012.172 Japan asserts that TEPCO has 
undertaken a number of steps to control ongoing leaks and prevent future leakages, including 
prevention of outflow of contaminated water from the reactor building, installation of sea -side wall, 
removal of strontium and other radionuclides from contaminated water stored in tanks, and usage 
of circulated and decontaminated water to cool the fuel debris.173 Japan notes that t he 
concentration of  radioactivity in the seawater at the FDNPP port has also decreased since 
immediately after the accident .174 
2.61.   TEPCO monitors the levels of caesium isotopes and total beta activity (from which strontium 
can be deduced) in seawater at various points of the FDNP P. These measurements have been 
published on a da ily basis beginning in March 2011. Since April 2015, the seawater near the 
FDNPP port entrance has been measured on an hourly basis. The hourly data were uploaded onto 
a publicly accessible website on a dail y basis. Since October 2016, the measurements nea r the 
FDNPP port entrance are published every 10 minutes .175 
2.62.   Although scientific studies have estimated the amounts of the initial release as well as the 
amounts remaining in the reactor (see section  2.5.3  below), the information on the record with 
respect to the subsequent releases does not establish how much of and which radionuclides were 
released into the ocean.176 The relevance of this infor mation will be discusse d in section 
7.7.6  below . 
2.5.3   Radioactive material still in the reactor  
2.63.   TEPCO has been investigating the PCV s, including throu gh the collection of water samples 
from the PCVs in units 2 and 3 in August 2013 and O ctober 2015. The utilization of new robot 
technologies to collect information from the PCVs was introduced in 2015. Both units 2 and 3 
contain reactor vessels that are be ing cooled with water so that the damaged fuel inside them 
does not heat up; and there  has been uncertainty about how the damaged fuel has evolved. A 
variety of radionuclides were detected in the samples measured in the PCVs, with levels of Cs -137 
ranging between 960 and 4200 Bq/cm^3 and Sr -90 between 4400 and 66000 Bq/cm^3.The 
measurements  in the containment vessels confirm that caesium was the primary radionuclide 
released in the initial accident while strontium and other radionuclides were differentially  retained 
within the containment vessel relative to the amount that was released.177  
2.64.   The following tables include measurements of the radionuclides in the PCVs for Units 2 and 
3178 of the FDNPP reactors . The measurements of other radionuclides in the coolant water inside 
the facility indicated the presence of less volatile radionuclides such a s Sr-90, Ru-106, Ce-144, Pu-
238 and Pu -239 and 240 in the contaminated water , which are among the radionuclides regulated 
in CODEX STAN 193 -1995. 
                                                
172 Japan Atomic Energy Agency, "Distribution of radioactivity concentration in the seawater around 
Fukushima Dai -ichi NPP by TEPCO" ( 2015), (Exhibit KOR -213.7.a and Exhibit KOR -213.7.b.) cited in Korea's 
second written submission, para. 73.  
173 Japan's comments on Korea's response to Panel question No. 117. See also e.g. Japan's first written 
submission, para. 23; opening statement at the  first meeting of the Panel, para. 32.  
174 2015 IAEA DG Report Technical Volume 1 , (Exhibit JPN -7), p. 158.  
175 D.J. Brenner and K. Buesseler, "A scientific response to Korea' s arguments in its first written 
submission", 11 July 2016 ( Japan's scientific respon se to Korea's arguments in its first written s ubmission ), 
(Exhibit JPN -148), p. 23; Japan's comments on the experts' responses to Panel question No. 59 to the experts.  
176 Japan's and Korea's responses to Panel question No. 8; and Analysis of caesium and additional 
radionuclides in food products from Ja pan and the rest of the world, (Exhibit JPN -11), para. 67; Japan's slides 
at the Expert Meeting, (Exhibit JPN -245), slide 19 ; Japan's opening statement at the second meeting of the 
Panel, Annex A slide 5 and  Annex B . 
177 Analysis of caesium and additional r adionuclides in food products from Japan and the rest of the 
world, (Exhibit JPN -11), p. 65.  
178 Samples LI -2RB5 -1 and LI -2RB5 -2 were collected on 7 August 2013 from PCV of Unit 2.  
Sample LI -3RB5 -1 was collected on 22 October 2015 near the water surface of PCV of Unit 3, and 
sample LI -3RB5 -2 was collected on the same date near the grating of PCV of Unit 3.  WT/DS495/R  
 
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  Table 3: Result of the nuclide analysis of the retained water in the PCV in Units 2 and 3  
Result (1) of the nu clide analysis of the retained water in the PCV in Units 2 and 3  
Radioactive Concentration (Bq/cm3) 
Name of 
the Sample  H-3  
(Approx. 12 Yrs)  Co-60 
(Approx. 5.3 Yrs)  Sr-90 
(Approx. 29 Yrs)  Nb-94 
(App. 2.0 x 
104 Yrs) Ru-106 
(Approx. 374 
Days)  Sb-125 
(Appro x. 2.8 Yrs)  
LI-2RB5 -1 (6.9±0.1) x 102 (3.6±0.1) x 101 (6.6±0.1) x 104 < 3 x 10-1 < 2 x 102 (3.3±0.3) x 101 
LI-2RB5 -2 (7.0±0.1) x 102 (4.1±0.1) x 101 (6.8±0.1) x 104 < 3 x 10-1 < 2 x 102 (9.4±0.3) x 101 
LI-3RB5 -1 (3.5±0.1) x 102 (2.2±0.1) x 101 (7.5±0.2)  x 103 < 3 x 10-1 (7.1±2.0) x 
101 (5.3±0.2) x 101 
LI-3RB5 -2 (2.0±0.1) x 102 (1.1±0.1) x 101 (4.4±0.1) x 103 < 2 x 10-1 < 8 x 101 (1.6±0.2) x 101 
 
Radioactive Concentration (Bq/cm3) 
Name of the 
Sample  Cs-137 
(Approx. 30 Yrs)  Ce-144 
(App. 285 Days)  Eu-152 
(Approx. 14 Yrs)  Eu-154 
(Approx. 8.6 Yrs)  
LI-2RB5 -1 (4.0±0.1) X 103 (3.7±1.0) X 102 < 2 x 100 < 9 x 10-1 
LI-2RB5 -2 (4.2±0.1) X 103 < 3 X 102 < 3 x 100 < 9 x 10-1 
LI-3RB5 -1 (1.8±0.1) X 103 (2.9±0.4) X 102 < 2 x 100 (1.9±0.2) X 100 
LI-3RB5 -2 (9.6±0.1) X  102 (1.4±0.3) X 102 < 1 x 100 (7.8±0.9) X 10-1 
 
Result (2) of the nuclide analysis of the retained water in the PCV in Units 2 and 3  
 
Radioactive Concentration (Bq/cm3) 
Name of the 
Sample  U-234  
(Approx. 2.5 X 
105 Yrs) U-235 
(Approx. 7.0 X 
108 Yrs) U236 
(Approx. 2.3 X 
107 Yrs) U-238 
(Approx. 4.5 x 
109 Yrs) U-235/U-238 
Mass Ratio  
LI-2RB5 -1 (1.8±0.2) x 10-4 (4.2±0.4) x 10-6 (2.8±0.3) x 10-5 (4.1±0.2) x 10-5 1.6 x 10-2 
LI-2RB5 -2 (1.4±0.1) x 10-4 (3.6±0.2) x 10-6 (2.0±0.1) x 10-5 (2.9±0.1) x 10-5 1.9 x 10-2 
LI-3RB5 -1 (7.7±0.6) x 10-4 (1.8±0.2) x 10-5 (1.2±0.1) x 10-4 (1.7±0.1) x 10-4 1.6 x 10-2 
LI-3RB5 -2 (1.9±0.1) x 10-4 (5.1±0.2) x 10-6 (3.0±0.1) x 10-5 (4.2±0.1) x 10-5 1.9 x 10-2 
 
 
Radioactive Concentration (Bq/cm3) 
Name of 
the 
Sample  Pu-238 
(Approx.  88 Yrs)  Pu-239+Pu-240 
(Approx. 2.4 x104 
Yrs) 
(Approx. 6.6 x 
103 Yrs) Am-241 
(Approx. 4.3 x 
102 Yrs) Am-242 
 (Approx. 163 
Days)  Cm-244 
(Approx. 18 Yrs)  
LI-2RB5 -1 (2.4±0.1) X 10-1 (7.3±0.5) X 10-2 (6.3±0.5) X 10-2 < 8 x 100 (1.5±0.1) X 10-1 
LI-2RB5 -2 (2.2±0.1) X 10-1 (7.2±0.5) X 10-2 (6.9±0.5) X 10-2 < 8 x 100 (1.5±0.1) X 10-1 
LI-3RB5 -1 (9.4±0.2) X 10-1 (2.7±0.1) X 10-1 (2.7±0.1) X 10-1 (3.0±0.7) X 
101 (3.8±0.2) X 10-1 
LI-3RB5 -2 (5.8±0.2) X 10-1 (1.8±0.1) X 10-1 (1.7±0.1) X 10-1 (2.6±0.6) X 
101 (2.3±0.1)  X 10-1 
Source: Japan Atomic Energy Agency / International Research Institute for Nuclear Decommissioning, Analysis 
Results of Waste Samples (23 February 2017) (Exhibit KOR -302) 
 
2.6  Japan's response to the effect of the FNDPP accident on food  
2.65.   In immediate r esponse to the accident , Japan imposed a variety of measures restricting the 
distribution and sale of certain products from the most affected regions. Japan also re -evaluated 
its maximum levels for certain radionuclides and modified aspects of its food and  sea water 
monitoring r egimes. Additionally, Japan banned coastal fishing and bottom trawling in the waters 
within 20 km of the FDNPP .179 The response to the FDNPP accident was coordinated horizontally 
amongst a variety of government authorities  with relevan t competence, including  the Ministry of 
                                                
179 Fisheries Agency of Japan, "Report on the Monitoring of Radionuclides in Fishery Products 
(March  2011 – January 2015)" (April 2015) (FAJ Monitoring Repo rt), (Exhibit JPN -43), pp. 11, 46.  WT/DS495/R  
 
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  Health, Labour and Welfare (MHLW), Nuclear Emergency Response Headquarters (NERH), Ministry 
of Agriculture, Forestry and Fisheries (MAFF), and the Ministry of the Environment (MOE). 
Additionally, the national governm ent also coordinated it s activities with those of prefectural and 
local governments as well as with TEPCO.  
2.66.    On 17 March 2011, the criteria in the table below were established as provisional regulation 
values for radionuclide levels in food and drinking wa ter under the Food Sani tation Act.180 The 
levels set were to ensure that overall exposure to radiation in food would not exceed 5  mSv/year 
for radioactive caesium, and 50 mSv/year for radioactive iodine.181  
Table 4: Provisional regulation values for radionucl ide levels in food and drinking water  
Nuclide  Type of Food  Bq/kg  
Radioactive Iodine (I -131) Drinking Water  300 
Milk, Dairy Products  
Vegetables (except root 
vegetables and tubers)  2000 
Fishery products  
Radioactive Caesium (Cs -134 and 137)  Drinking  Water  200 
Milk, Dairy Products  
Vegetables  500 
Grains  
Meat, eggs, fish, etc.  
Uranium  Infant foods  20 
Drinking Water  
Milk, Dairy Products  
Vegetables  100 
Grains  
Meat, eggs, fish, etc.  
Alpha -emitting nuclides of plutonium and transu ranic 
elements (total radioactive concentration of Pu -238, 
239, 240, and 242; Am -241; Cm -242, 243, 244)  Infant foods  1 
Drinking Water  
Milk, Dairy Products  
Vegetables  10 
Grains  
Meat, eggs, fish, etc.  
Source: FAJ Monitoring Report, (Exhibit JPN-43), p. 1 1; Japan Ministry of Health, Labour and Welfare, Notice, 
"Handling of food contaminated by radioactivity" (17 March 2011), (Exhibit JPN -41.b), p. 2.  
 
2.67.   Food that exceeded the levels was not allowed to be sold, collected, produced, imported, 
processed, used, cooked, stored, or displayed for the purpose of marketing.182 In April 2011, the 
Nuclear Emergency Response Headquarters (NERH) established and publicly announced guidelines 
on monitoring for radionuclides in foods, and the handling of the restr ictions on distribution.183 In 
June 2011, Japan established a certification system for food products intended for export, which 
was extended in September 2011 to cover shipping containers and some industrial products 
intended for export as well.184 
2.68.   At the requ est of the MHLW, the Food Safety Commission carried out  a risk assessment, 
which it completed in October 2011.185 Based on this, new standards were established and came 
into effect on 1 April 2012186, in which the maximum level for overall exposure to radiation in food 
                                                
180 FAJ Monitoring Report, (Exhibit JPN -43), p. 12; Japan Ministry of Health, Labour and We lfare, Notice, 
"Handling of food contaminated by radioactivity" (17 March 2011), (Exhibit JPN -41.b), pp. 1 -2. 
181 Report of the Japan' s Committee on Radionuclides in Foods, "Report on Standard Setting Regarding 
Radioactive Substance in Food" (23 February 201 2) (Report of Japan's Committee on Radionuclides in Foods ), 
(Exhibit JPN -40.b), pp. 3 -4. 
182 Japan Ministry of Health, Labour and Welf are, Notice, "Handling of food contaminated by 
radioactivity" (17 March 2011), (Exhibit JPN -41.b), p. 1.  
183 Japan Ministry of  Health, Labour and Welfare, Press Release, "The Revision of the 'Concepts of 
Inspection Planning and the Establishment and Cancella tion of Items and Areas to which Restriction on 
Distribution and/or Consumption of Foods concerned Applies' (Developed by th e Nuclear Emergency Response 
Headquarters)" ( MHLW Concepts of Inspection Planning and Items and Areas to which Restrictions of 
Distribution and/or Consumption of foods applies ), (20 March 2015), (Exhibit JPN -42.b), p. 1.  
184 2015 IAEA DG Report, (Exhibit JPN -2), p. 91 . 
185 FAJ Monitoring Report, (Exhibit JPN -43), p. 12.  
186 2015 IAEA DG Report , (Exhibit JPN -2), p. 90.  WT/DS495/R  
 
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  was lowered to 1 mSv/year, consistent with the Codex standard .187 The new levels set radioactive 
caesium as the representative radionuclide due to its large effect on internal radiation e xposure 
relative to other radionuclides considered, such as Pu -239 and 240 and Sr -90.188 New levels for 
radioactive caesium were set for four food categories: drinking water (10 Bq/kg), infant foods 
(50 Bq/kg), milk (50 Bq/kg), and general foods (100 Bq/kg)189, and excluded radioactive iodine, 
due to its short half -life.190 If caesium was detected below the level, the food was considered safe 
for market distribution , because Japan 's derivation of its caesium thresholds account for a dose 
contribution from Sr -90 and other radionuclides consistent with its assumptions on the r elative 
share of each radionuclide in the releases .191 
2.69.   Japan placed restrictions on products for public consumption192, the distribution of certain 
foods in specific areas193, and the use of agricult ural land and the collection of wild food 
products.194 Amongst th ese restrictions are those on drinking water, food, leafy vegetables and 
fresh milk195, in line with national guidelines that were developed by the NERH . These were 
continuously revised, most rec ently in 2015.196 
2.70.   Additionally, Japan imposes restrictions on the  distribution and shipping of food items across 
an entire region or in multiple locations if the NERH determines that an item might exceed the 
limits.197 These restrictions are maintained in the relevant area until the radionuclide level in the 
contaminated food item has been consistently found by the national food monitoring program me 
to be below the maximum level. For a distribution restriction to be lifted, all caesium tests 
conducted at multip le locations within, at least, the previous month must be below  the maximum 
level.198 In that situation, the NERH may lift the restriction upon application by the prefectural 
government(s) for the affected area. For fisheries products, specifically, the lift ing of a domestic 
distribution restriction requires an increase d number of samples, consideration of the species and 
its migratory behaviour, and confirmation that the caesium level falls below the maximum level in 
a stable manner.199 While d istribution rest rictions have been lifted progressively over time200, 
some restri ctions were in place  at the time the Panel was established and have continued to the 
present.201 For example, Japan's internal restrictions on the specific fishery products that are the 
subject o f its import ban -related claim s against Korea, have all been li fted; whereas the Korean 
measures remain in force.202 
2.71.   Japan imposed restrictions on the following products from Fukushima prefecture .203 The 
products in italics were still under restriction as of 9 February 2016:  
a. Raw milk  
b. Vegetables: (i) Non -head type leafy ve getables (e.g. spinach, komatsuna), (ii) head-type 
leafy vegetables, (iii) Flowerhead brassicas (e.g. broccoli, cauliflower), (i v) Turnip, (v) 
                                                
187 Report of the Committ ee on Radionuclides in Foods,  (Exhibit JPN -40.b), pp. 3 -4. 
188 FAJ Monitoring Report, (Exhibit JPN -43), p. 12.  
189 FAJ Monitoring Report, (Exhibit JPN -43), p. 12.  
190 FAJ Monitoring Report, (Exhibit JPN -43), p. 12.  
191 FAJ Monitoring Report, (Exhibit JPN -43), p. 1 2. 
192 2015 IAEA DG Report, (Exhibit JPN -2), p. 89.  
193 2015 IAEA DG Report, (Exhibit JPN -2), p. 89.  
194 2015 IAEA DG Rep ort, (Exhibit JPN -2), p. 140.  
195 2015 IAEA DG Report, (Exhibit JPN -2), p. 120.  
196 MHLW Concepts of Inspection Planning and Items and Areas to w hich Restrictions of Distribution 
and/or Consumption of foods applies , (Exhibit JPN -42.b).  
197 FAJ Monitoring Report, (Exhibit JPN -43), pp. 18 -20. 
198 Japan's first written submission, para. 75; FAJ Monitoring Report, (Exhibit JPN -43), p. 18.  
199 MHLW Concepts o f Inspection Planning and Items and Areas to which Restrictions of Distribution 
and/or Consumptio n of foods applies , (Exhibit JPN -42.b), p. 10; FAJ Monitoring R eport, (Exhibit JPN -43), 
pp. 20-21. 
200 See section 2.7; Japan Ministry of Health, Labo ur and Welfare, "The instructions associated with food 
by Director -General of the Nuclear Emergency Response Headquarters" (as of 9 February 2016), ("Japan 
MHLW Internal Distribution Restrictions on Food"), (Exhibit JPN -48).   
201 See Japan's domestic restri ctions at 
http://www.mhlw.go.jp/english/topics/2011eq/index_food_press.html (cited to in Korea's second written 
submission, fn. 121).  
202 Japan MHLW Internal Distribution Restrictions on Food, (Exhibit JPN -48). 
203 Japan MHLW Internal Distribution Restrictions  on Food, (Exhibit JPN -48). WT/DS495/R  
 
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  Mushrooms ( log-grown shiitake  (outdoor and indoor cultivation), log-grown pholiota 
nameko  (outdoor cultivation), and wild mushrooms ), (vi) Bamboo shoots, (vi i) Other 
vegetables ( hatakewasabi , wild aralia cordata , ostrich fern , wild ostrich fern , koshiabura , 
Japanese royal fern , wild Jap anese royal fern , wild uwabamisou , wild aralia sprout , giant 
butterbur , wild giant  butterbur , wild Japanese butterbur scape , pteridium aquilinum , wild 
pteridium aquilinum , Japanese apricot (Ume) , yuzu, chestnut , kiwi fruit . 
c.  Cereal: Azuki bean, Soybean  and rice produced in 2011 (later extended each year 
through 2015)  
d. Fishery products: Japanese sandlance (juvenile ), cherry salmon  (excluding farmed fish) , 
Japanese dace , Japanese eel , Ayu sweetfish  (excluding farmed fish) , Whitespotted char  
(excluding farmed fish), common carp  (excluding farmed fish) , Any crucian carp  
(excluding farmed fis h), fat greenling , red tongue sole , Japanese  sandlance (excluding 
juvenile), Stone flounder , Goldeye rockfish , Surfperch , Brown hakeling , Fox jacopever , 
Black cow-tongue , Black rockfish , Japanese black porgy , Sea raven, Ocellate spot skate , 
Cherry salmon ( Sakuramasu) , Poacher , Rockfish (Sebastes cheni) , Japanese seabass , 
Nibe croaker, Starry flounder , Slime flounder , Panther puffer, Olive flounder , Gurnard, 
Spotted halibut , Conger eel , Marbled flounder , Flathead , Pacific cod, Shotted halibut, 
Brassblotched rockfish , Ridged -eye flounder, Venus clam , Northern sea urchin, Flathead 
flounder, Alaska pollock , Littlemout flounder, Long shanny , Barfin flounder , Starspott ed 
smooth -hound, Vermiculated puffer, Halfbeak, Scorpion fish , Hilgendor saucord.  
e. Meat: Beef, Boar meat , Spot-billed duck meat , Green pheasant meat , Bear meat , Hare 
meat, Copper pheasant meat . 
2.72.   Japan also imposed restrictions on distribution of some product s from Aomori, Iwate, 
Miyagi, Yamagata, Ibaraki, Tochigi, Gunma, Saitama, Chiba, Kanagawa, Niigat a, Yamanashi, 
Nagano, and Shizuoka.204 Various Japanese governmental authorities publish information both on 
these distribution restrictions205 and the monitoring data collected under the national food 
monitoring programme.206 
2.73.   Japan monitors food and the environ ment, which covers, inter alia , seawater, sediment, 
marine biota, air and soil.207 This monitoring is to provide sufficient data for officials to make  
decisions about regulating food for sale, collection, production, importation, processing, use, 
cooking, st orage, or display for the purpose of marketing. The Environmental Radioactivity 
Database (ERD), established by the  NRA collects and provides data on  measurements of 
radioactivity in the environment as well as in food products. These data have been obtained  and 
submitted by national/local governments and public institutions.208 
2.74.   Testing under the national food monitoring programme is focused on items that  are more 
likely to exhibit higher levels of radioactive caesium.209 Monitoring takes place in 17 of Japan's 4 7 
                                                
204 Japan MHLW Internal Distribution Restrictions on Food, (Exhibit JPN -48). 
205 Japan MHLW Internal Distribution Restrictions on Food, (Exhibit JPN -48). 
206 Ministry of Health, Labour and Welfare, "L evels of Radioactive Contaminants in Foods Tested in 
Respective Prefectures", available at 
http://www.mhlw.go.jp/english/topics/2011eq/index_food_radioactive.html (last viewed 6 March 2016) and 
Fisheries Agency Japan, "Results of the monitoring on radioact ivity level in fisheries products" , available at 
http://www.jfa.maff.go.jp/e/inspection/index.html (last viewed 6 March 2016). The Japanese originals are 
available at the following webpages:  http://www.mhlw.go.jp/stf/kinkyu/0000045250.html (Ministry of He alth, 
Labour and Welfare) and http ://www.jfa.maff.go.jp/j/housyanou/kekka.html (Fisheries Agency Japan). Japan 
refers to these web pages in para. 78 of its first written submission.  
207 Japan's Ministry of Agriculture, Forestry and Fisheries, "Data from the Environmental Radioactivity 
Databa se on radioactivity of soil", (Exhibit JPN -94); Nuclear Regulation Authority, Airborne Monitoring, 
available at: http://radioactivity.nsr.go.jp/en/list/ 278/list -1.html , International At omic Energy Agency, 2015 
IAEA DG  Report, (Exhibit JPN -2), p. 107; Implementation Guides on Sea Area Monitoring (2016), available at: 
http://radioactivity.nsr.go.jp/en/contents/12000/11108/24/274_s_20160401.pdf.pdf, (Exhibi t JPN-278).  
208 The environmental ra dioactivity database is available at: http://search.kankyohoshano.  
go.jp/servlet/search.SelectMain?paraSelectKind=0&pageSID=202417241. See Overview of Japan's food 
monitoring data submitted to the Panel, (Exhibit JPN -272),  p. 22.  
209 FAJ Monitoring Report, (Exhibit JPN -43), p. 14.  WT/DS495/R  
 
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  prefectures210, and covers: grains, vegetables, fruits, edible fungi (cultivated), fishery products 
(fresh water and non -freshwater), cattle meat, l ivestock products (other than cattle meat), game 
meat, wild plants and wild edible fungi, milk for children and adults and infant foods, tea and 
drinking water, and processed foods.211 Testing of food samples is conducted on a weekly basis.212 
However, when ra dionuclide content close to or exceeding the maximum limit is detected, the 
frequency of inspection increase s213; the government may separately instruct the local 
governments on the frequency of inspections as needed.214 
2.75.   The food monitoring programme aims to i dentify and monitor contamination levels in food 
relative to Japan 's maximum level for caesium , initially 37 0 Bq/kg and since April 2 012 
100 Bq/kg .215 Therefore, the level of detection mandated for use by local authorities in testing for 
caesium is normally one fifth of the maximum level – i.e., 20 Bq/kg.216 However, many of the tests 
are undertaken with much lower levels of de tection, including levels of detection below 1 Bq/kg.217 
2.76.   Japan also uses the "market basket survey" method to test food that has entered t he 
marketplace. Food categories are purchased at markets throughout Japan in proportion to the 
average amoun t of an individual 's consumption of food in each category. This "basket" of foods is 
then tested. Japan has also undertaken "duplicate diet surveys" , where subjects weigh and set 
aside a duplicate portion of all the foods they have eaten, and the collected  food is mixed 
uniformly for an analysis  of radionuclide content . Such surveys are a method of assessing dietary 
intake at the household level of an y specified substances in foods – in this case radionuclides.218 
The market basket and duplicate diet surveys focus on testing for caesium, and in some instances 
strontium and plutonium.219 
2.77.   The Fisheries Agency and the Fisheries Research Agency have been testing for strontium 
and plutonium since the Fukushima accident. 220 This testing also included testing for caesiu m and 
iodine, and has targeted a broad variety of fish including Japanese sardine, Japanese sandlance, 
Anchovy, Pacific cod, Flathead flounder,  Swimming crab, Southern Mackerel, Rockfish, Shotted 
halibut, Ishikawa icefish, Alaska pollock , Pacific saury, Ch ub mackerel, Conger eel, Sakura shrimp, 
                                                
210 Japan's response to Panel question No. 7. Japan explains that the 17 prefectures are Aomori, Iwate, 
Akita, Miy agi, Yamagata, Fukushima, Ibarak i, Tochigi, Gunma, Chiba, Saitama, Tokyo, Kanagawa, Ni igata, 
Yamanashi, Nagano,  and Shizuoka. When selecting sampling locations, Japan takes into account concentrations 
of radioactive caesium in soils, the results of environmental radiation monitoring, and locations in which over 
half of the maximum level for  radioactive caesium has been detected in the relevant items produced in the 
past. See  MHLW Concepts of Inspection Planning and the Establishment and Cancellation of Items and Areas to 
which Restriction on Distribution and/or Consumption of foods applies, (Exhibit JPN -42.b), p. 8.  
211 Japan Ministry of Agriculture, Forestry and Fisheries, "Overview of food monitoring results" 
(April  2012 – March 2016), (Exhibit JPN -155).  
212 MHLW Concepts of Inspection Planning and the Establishment and Cancellation of Items an d Areas to 
which Restrict ion on Distribution and/or Consumption of foods applies, (Exhibit JPN -42.b), p. 8.  
213 Japan's response to Panel question No. 123(b); MHLW Concepts of Inspection Planning and the 
Establishment and Cancellation of Items and Areas to w hich Restriction on Distr ibution and/or Consumption of 
foods applies, (Exhibit JPN -42.b), p. 8.  
214 Japan's response to Panel question No. 123(b); MHLW Concepts of Inspection Planning and the 
Establishment and Cancellation of Items and Areas to which Restric tion on Dist ribution and/ or Consumption of 
foods applies, (Exhibit JPN -42.b), p. 8.  
215 Japan Ministry of Health, Labour and Welfare, "Testing Methods for Radi oactive Substances in Food" 
(15 March 2012), (Exhibit JPN -44.b).  
216 Japan's second written submissio n, para. 503; Japan Ministry of Health, Labour and Welfare, "Testing 
Methods for Radioactive Substances in Food" (15 March 2012), (Exhibit JPN -44.b), p. 4.  
217 Japan Ministry of Agriculture, Forestry and Fisheries, "Data underlying Overview of food monitorin g 
results" (April 20 12 – March 2016), (Exhibit JPN -156), which is derived from:  Japan Ministry of Health, Labour 
and Welfare, "Cesium Monitoring Data of Food Products" (April 2012 – July 2016), (Exhibit JPN -157).  
218 FAJ Monitoring Report, (Exhibit JPN -43), p. 24.  
219 Japan's Mi nistry of Agriculture, Forestry and Fisheries, "Effective dose from Market Basket Survey 
and Duplicate Meal Survey" (2011 -2015), (Exhibit JPN -101); Japan's Ministry of Agriculture, Forestry and 
Fisheries, "Effective dose from Duplicate Diet Survey"(2014), (Exhibit JPN -102); Japan's Ministry of Agriculture, 
Forestry and Fisheries,  "Effective dose from Nationwide Market Basket Survey and Duplicate Meal Survey: 
Overview of Data"(2011 -2015), (Exhibit JPN -132); Japan's Ministry of Agricultur e, Forestry and Fish eries, 
"Effective dose from Market Basket Survey: Raw Data (multiple prefectures)"(2011 -2015), (Exhibit JPN -133 
revised); and Japan's Ministry of Agriculture, Forestry and Fisheries, "Effective Dose from Duplicate Diet 
Survey: Raw Data (multiple prefecture s)"(2011 -2015), (Exhibit JPN -134); and Fukushima Prefecture, "Effective 
dose from Duplicate Diet Survey (Fukushima prefecture)" (Fukushima Duplicate Diet Survey), (Exhibit JPN -
135).  
220 FAJ Monitoring Report (Exhibit JPN -43), pp. 49 -52. WT/DS495/R  
 
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  Black scraper, Blunthead puffer, Mahi -mahi, Japanese jack mackerel, Round herring, Chum 
salmon, Scallop , Black rockfish, Steller's sculpin, Neon Flying squid , Alfonsino, Pacific grenadier, 
Giant pacific octopus, flo under, Flame snapper, Laver, Wakame seaweed, Olive flounder, Redwing 
searobin, Stone flounder, Crimson sea bream, Krill, Spiny dogfish, Beach c onger, Red seabream, 
Common sea squirt and Shortfin mako shark.221 Samples of these fish were harvested from all of  
the representative sea zones around Japan. Usually the whole body of the sample is analysed: 
however, in some cases, the viscera, the shell or  the head are excluded. In other cases, only the 
edible part of the body is tested.222 
2.78.   Under a Comprehensive Radiat ion Monitoring plan, the MOE measures the concentration of 
radioactive materials in the aquatic environment, including aquatic organisms.223 Aquatic 
organisms are obtained from rivers, lakes and coastal areas located mainly within a 50 km radius 
of the FDNPP . This testing covers both species that are not consumed by humans but form part of 
the aquatic food chain, such as algae and insects, and spec ies that humans ordinarily consume.224 
2.79.   Japan adopted a Sea Area Monitoring plan in October 2011, which was further modified in 
2012.225Japan also published specific implementation guidelines for sea area monitoring in 
2013.226 The sea area around FDNPP is divide d into the following four areas in terms of their 
distance from the plant (a) Area close to FDNPP is the area wit hin approximately 3  km from 
FDNPP. (b) Coastal area is the area within approximately 30  km from the coastline (including river 
outlets) of Aomo ri, Iwate, Miyagi, Fukushima and Ibaraki Prefectures; (c) Offshore area is the area 
between approximately 30  km a nd 90  km from the coastline; (d) Outer sea area is the area 
approximately 90  km or more from the coastline. Since 2012, Tokyo Bay is also monit ored.227  
Each sampling point in the five areas covered by the seawater monitoring plan falls under the 
authority o f a responsible organization. Organizations involved in seawater monitoring are NRA, 
Fisheries Agency, Ministry of Land, Infrastructure, Transp ort and Tourism (MLIT); Japan Coast 
Guard; MOE; Fukushima Prefectural Government; TEPCO; Local governments; Local  fishery FDNPP 
site unions; and Research institutes.228 The NRA plays a leading and coordinating role for all 
monitoring activities.229 
2.80.   When a leak age of cont aminated water is suspected or confirmed , TEPCO and the central 
governmental organizations work togeth er to investigate and monitor the situation through the 
collection of seawater samples.230 The monitoring frequency, the radionuclides being moni tored, 
detection limits, sampling depth and monitoring organization vary according to the extent of 
contamination  and the sampling points.231  
                                                
221 FAJ Monitoring Repo rt (Exhibit JPN -43), pp. 49 -52. 
222 FAJ Monitoring Report (Exhibit JPN -43), p. 49 -52. 
223 Ministry of Education, Culture, Sports, Science and Technology, Fisheries Agency, Ministry of Land, 
Infrastructure, Transport and Tourism, Japan Coast  Guard, Japan Meteorological Agency, Ministry of the 
Environment, Fukushima Prefecture, Tokyo Electric Power Co., Inc., "Sea Area Monitoring Plan in FY2012" 
(30 March 2012), (Exhibit KOR -246); Secretariat of Nuclear Regulation Authority, Fisheries Agency, Ministry of 
Land, Infrastructure, Transport and Tourism, Japan Coast Guard, Japan Meteorological Agency, Ministry of the 
Environment, Fukushima Prefectural Government, Tokyo Electric Power Co., Inc., "Implementation Guides on 
Sea Area Monitoring in FY2013"  (1 April 2013 ), (Exhibit KOR -247). See also Japan Ministry of Agriculture, 
Forestry and Fisheries, "Fish and shellfish monitoring data from 'Aquatic Monitoring' published by Japan 
Ministry of the Environment", (Exhibit JPN -96); Japan's first written submi ssion, para. 7 0. 
224 Japan Ministry of Agriculture, Forestry and Fisheries, "Fish and shellfish monitoring data from 
"Aquatic Monitoring" published by Japan Ministry of the Environment", (Exhibit JPN -96), MOE Fish and Shellfish 
Data, (Exhibit JPN -272), p. 17 , and Japan's first written submission, para. 70.  
225 Ministry of Education, Culture, Sports, Science and Technology, Fisheries Agency, Ministry of Land, 
Infrastructure, Transport and Tourism, Japan Coast Guard, Japan Meteorological Agency, Ministry of the 
Environment, Fu kushima Prefecture, Tokyo Electric Power Co., Inc., "Sea Area  Monitoring Plan in FY2012" 
(30 March 2012), (Exhibit KOR -246).  
226 Secretariat of Nuclear Regulation Authority, Fisheries Agency, Ministry of Land, Infrastructure, 
Transport and Tour ism, Japan Coa st Guard, Japan Meteorological Agency, Ministry of the Environment, 
Fukushima Prefectural Government, Tokyo Electric Power Co., Inc., "Implementation Guides on Sea Area 
Monitoring in FY2013" (1 April 2013), (Exhibit KOR -247).  
227 Implementation  Guides on Sea  Area Monitoring (2016), (Exhibit JPN -278), pp. 1 -2. 
228 Implementation Guides on Sea Area Monitoring (2016), (Exhibit JPN -278), p. 1.  
229 Implementation Guides on Sea Area Monitoring (2016), (Exhibit JPN -278), p. 1.  
230 Implementation Guides on Se a Area Monitor ing (2016), (Exhibit JPN -278), p. 2.  
231 Implementation Guides on Sea Area Monitoring (2016), (Exhibit JPN -278), pp. 2 -9. WT/DS495/R  
 
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  2.81.   For seawater in the area close to the FDNPP, the monitoring frequency ranges from 
anywhere between once a day to on ce in six months depending on the sampling point and the 
radionuclide being monitored. The radionuclides tested for include caesium, iodine, strontium and 
plutonium. For the coastal area, sampling takes place once a year at minimum and can be as 
frequent a s once a week also depending on the sampling point and radionuclide being monitored. 
The radionuclides tested for  are caesium, iodine, strontium and plutonium. For the off -shore area, 
monitoring for caesium takes place once every three months for all sampl ing points. The outer sea 
area is also divided up into sampling points depending on which the monitoring organiza tion does 
monitoring either once in six months or once every year. The radionuclides tested also depend on 
the sampling points and include caes ium and strontium. Tokyo Bay is monitored for caesium 
between once a month to once a year, depending on the sampl ing point and the radionuclide being 
monitored.232 
2.82.   For sediment, in the area close to the FDNPP the frequency of monitoring ranges from once 
a month to once in six months. Similarly, for the coastal areas, depending on the sampling point, 
the monitoring freq uency ranges from once a month to once a year. For both these areas, 
monitoring is for caesium, strontium and plutonium, and the frequency chan ges depending on the 
sampling point and the radionuclides being monitored. For the off -shore area, monitoring for  
caesium is done once every three months for all sampling points. For the outer sea area there is 
no monitoring for sediment.  Tokyo Bay is mon itored for caesium, with a frequency between four 
to seven  times  per year, once  every three  months, six times  per year or once  every three  months 
depending on which sampling point is being monitored.233 
2.83.   Marine biota is monitored for caesium. Sampling is conducted in the sea areas mainly facing 
the Fukushima prefecture. It ranges from once a week to once in three to fou r months depending 
on the  area.234 
2.84.   Japan cooperates with the IAEA to carry out inter -laboratory comparisons of sea water since 
September 2014, and with sediment and fisheries products since May and November 2015, 
respectively.235  
2.85.   Monitoring data from the mout h of the FDNPP port  are m ade publicly available on an hourly 
basis and is available at www.tepco.co.jp/en/nu/fukushima -np/f1/smp/index -e.html .236 
2.7  Korea's response to the FDNPP acci dent 
2.86.   Korea responded to the nuclear accident by establishing a task force under the supervision 
of the Prime Minister's Office to coordinate the government's emergency response measures, 
including monitoring radioactive contamination levels of products at airports an d harbours, 
establishing safety management systems for food products, and reporting detection results to the 
public in a timely manner.237 
2.87.   Korea imposed a variety of control measures within days of the accident. Korea's Ministry of 
Food, Agricultu re, Forestr y and Fisheries (MIFAFF)238 was responsible for regulating fishery 
products and livestock products, and Korea's Food and Drug Administration (KFDA)239 was 
                                                
232 Implementation Guides on Sea Area Monitoring (2016), (Exhibit JPN -278), pp. 2 -6. 
233 Implementation Guides on Sea Area Mon itoring (2016) , (Exhibit JPN -278), Table 10.  
234 Implementation Guides on Sea Area Monitoring (2016), (Exhibit JPN -278), p. 9.  
235 International Atomic Energy Agency, "Fourth IAEA Mission to Collect Marine Samples in Fukushima 
Prefecture" (12 November 2015), ( Exhibit JPN -51); International Atomic Energy Agency, "IAEA finds Japanese 
labs reliable in analysing fish from sea near Fukushima" (4 March 2016), (Exhibit JPN -52). 
236 Japan's scientific response to Korea's arguments in its first written submission , (Exhibi t JPN-148), 
para. 52; Japan's comments on the experts' responses  to Panel question No. 59  to the experts. See also 
para. 2.61 above . 
237 OECD Nuclear Energy Agency, "Report of the Korean Government Response to the  Fukushima Daiichi 
Nuclear Accident" (2011), https:/ /www.oecd -
nea.org/nsd/fukushima/documents/Korea_2011_08Policy00GovernmentResp onsetoFukushimaAccident.pdf , 
(Exhibit KOR -35). 
238 MIFAFF was administering the import measures related to fishery products until the Korea Ministry of 
Food and Drug Safety (MFDS) b egan administering the measures in March 2013. MIFAFF was subsequently 
succe eded by the Ministry of Agriculture, Food and Rural Affairs (MAFRA).  
239 Korea Food and Drug Administration was succeeded in March 2013 by MFDS.  WT/DS495/R  
 
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  responsible for regulating agro -forestry products, processed foods, food additives and health 
functional foods. This second set of products will be referred to as "non -fishery products".  Over 
time, Korea progressively imposed measures relating to imports of both fishery and non -fishery 
products. Korea applies certain testing and certification requi rement s both prior to export and at 
the border prior to placing onto the Korean market. Additionally, as part of its testing 
requirements, Korea lowered its tolerance level for caesium -134 and 137  to 100 Bq/kg, which is 
the same tolerance level used in Jap an.. Korea also imposed a variety of import bans on various 
products from specified regions.  
2.7.1   Pre-export certification requirements  
2.88.   Korea introduced certain certification requirements on products that are allowed to be 
imported from Japan. On 1 May 2011, K FDA imposed  a measure requiring that the import of  non-
fishery products (except livestock) from all Japanese prefectures be accompanied by  a certificate 
of origin.240 MIFAFF began to apply this certificate of origin requirement to fishery products and 
livest ock product s imported from all Japanese prefectures two weeks later.241  
2.89.   Korea and Japan adopted the origin certificate format agreed upon between Japan and the 
European Union. For fresh agricultural products and agricultural products destined to be processe d, 
origin r efers to the location where the product is cultivated and harvested. For processed products, 
it is the location where the last substantial step of the production process occurs. For fishery 
products, origin corresponds to the place of harvest, p rocessing a nd/or packaging; if these steps 
happen in different prefectures, the prefecture for which Korea's import regime is the most 
restrictive is considered to be the prefecture of origin.242  
2.90.   Japan does not challenge Korea's requirement to provide a cer tificate of  origin with all 
products imported into Korea from Japan.  
2.91.   Korea  imposed requirements for a pre -export certificate of caesium and iodine testing on 
certain non -fishery products simultaneously with the requirements for a certificate of origin  for 
certain pr efectures .243 The measure required a certificate attesting that caesium and iodine levels 
were within the tolerance limits applied by Korea.244 Korea  later expanded the application of the 
pre-export caesium and iodine testing certification requireme nts to fish ery and livestock products 
between 14 May 2011 and 9 September 2013.  
2.92.   Initially, non-fishery products (except livestock) from 13 Japanese prefectures245 were 
required to be accompanied by a pre -export caesium and iodine testing certificate attesti ng that 
the products had been tested for caesium and iodine and that they were within the maximum 
levels set by Korea. The prefectures subject to the requirements were regions in which Japan had 
detected radioactive materials in food.246  
2.93.   Korea  applied the s ame testing and certification requirements to fishery and livestock 
products two weeks later.247 With regards to  fishery products , the list of prefectures requiring this 
certificate was modified twice248 following the detection of radioactive ma terials in cer tain regions 
                                                
240 Korea Food and Drug Administration,  Press Release, "Status of KFDA's Response and Management 
Measures Regarding  the Japanese Nuclear Crisis (5)" (14 April 2011), ( KFDA 14 April 2011 Press Release),  
(Exhibit  JPN-55.b (revised)), (Exhibit KOR -72 (revised)).  
241 Korea National Fishery Inspection  Services, "Notification of Strengthened Inspection on Fishery 
Products Orig inated from Japan" (4 May 2011), (Exhibit KOR -75). 
242 Japan and Korea's responses to Panel question No. 127.  
243 KFDA 14 April 2011 Press Release , (Exhibit JPN -55.b (revised)), (Exhib it KOR -72 (revised)).  
244 For Cs -134 and Cs -137, the level applied by Korea wa s 370 Bq/kg before 1 April 2012 and 100 Bq/kg 
after; for I -131, the level remained unchanged and is 300 Bq/kg.  
245 Chiba, Fukushima, Gunma, Miyagi, Ibaraki, Kanagawa, Nagano, Niigata, Saitama, Shizuoka, Tochigi, 
Tokyo and Yamagata. See KFDA 2011 Instruction on new certification requireme nts for Japanese food, 
(Exhibit  KOR-40.b).  
246 KFDA 14 April 2011 Press Release , (Exhibit JPN -55.b (revised)), (Exhibit KOR -72 (revised)), p. 2.  
247 Korea National Fishery Inspection Services, "Notification of Strengthened Inspect ion on Fishery 
Products Originated from Japan" (4 May 2011), (Exhibit KOR -75). 
248 In June 2012, five prefectures were excluded from the list of the thirteen prefectures decid ed on 
14 May 2011 and seven prefectures were added to the same list. This amounted to 15 prefectures that 
required  a pre-export certificate for caesium testing. In October 2012, one prefecture was excluded from the WT/DS495/R  
 
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  either as a result of monitoring in Japan or of import inspection in Korea, amounting to 16 
prefectures249 by mid -2013.250 Following the application of a blanket import ban (see section  2.7.7) 
in 2013 o n all fishery products from 8 of these 16 prefectures, only Aichi, Ehime, Hokkaido, 
Kagoshima, Kanagawa, Kumamoto, Mie and Tokyo  can export fishery products to Korea subject to 
the various certification requirements including certificates of origin and res ults of caesium and 
iodine testing.251 
2.94.   Japan does not challenge Korea's requirement to provide a certificate indicating that 
caesium and iodine has been tested for prior to export and is within Korea's tolerance levels as 
currently applied to Japanese non -fishery products from Miyagi, Fukushima , Gunma, Tochigi, 
Ibaraki, Chiba, Saitama, Kanagawa, Shizuoka, Nagano, Tokyo, Yamagata, Niigata  and to fishery 
products from Aichi, Ehime, Hokkaido, Kagoshima, Kanagawa, Kumamoto, Mie and Tokyo.252 
2.95.   Although Japan does not  challenge either the origin certific ate or the requirement for a pre -
export caesium and iodine testing certificate, the parties disagree on how the two requirements 
operate in tandem. Japan asserts that the pre -export certificate for caesium and iodine te sting 
replaces the certificate of ori gin in the prefectures where it is required253, whereas Korea has 
indicated that the "requirement to provide a pre -export cesium testing certificate does not 
supersede the requirement for a certificate of origin".254 
2.7.2   At-the-border testing for every consignment   
2.96.   The first measure Korea put in place intensified the "at -the-border -testing"  regime  for 
caesium  and iodine in Japanese products. Before the accident, Korea tested for caesium and iodine 
in Japanese products in samples  from randomly selected consignments,  as it currently does for 
most products from third sources.255 Three days after the accident the KFDA and MIFAFF began to 
test for caesium and iodine in samples from every consignment of fresh agro -forestry products and 
livestock products from all Japanese p refectures256, and fishery products from four prefectures in 
which Japan had detected radioactive materials (Fukushima, Aomori, Miyagi, Iwate). Fishery 
products from all other prefectures were tested for caesium and iodin e at the border on a weekly 
                                                                                                                                                  
list of 15 prefectures decided in June 20 12 and two prefectures were added to the same list; Japan's and 
Korea's responses t o Panel question No. 111(c).  
249 Aichi, Aomori, Chiba, Ehime, Fukushima, Gunma, Hokkaido, Ibaraki, Iwate, Kagoshima, Kanagawa, 
Kumamoto, Mie, Miyagi, Tochigi and Tokyo; Japan and Korea's responses to Panel question No. 111(c).  
250 Korea Ministry of Food, Agric ulture, Forestry and Fisheries, "Notification of adjusted areas subject to 
radioactive material inspection certificate requirements for Japanese fishery products" (26 September 2012) 
(Redacted), (Exhibit KOR -76 (revised)).  
251 See KFDA 14 April 2011 Press Re lease, (Exhibit JPN -55.b (revised)), (Exhibit KOR -72 (revised)). The 
13 prefectures for which pre -export testing was originally required for fisheries products are: Mi yagi, 
Yamagata, Niigata, Nagano, Saitama, Kanagawa, Shizuoka and Tokyo -to, in addition to  Fukushima, Ibaraki, 
Tochigi, Gunma and Chiba. Subsequent to this press release, on 1 June 2012, Yamagata, Saitama, Niigata, 
Nagano and Shizuoka were removed from the list of prefe ctures required to undergo pre-export testing, and 
Hokkaido, Aomori, Iwate, Mie, Ehime, Nagasaki, and Kumamoto were added to the list. On 15 October 2012, 
Nagasaki was moved from the list of prefectures subject to pre -export testing requiremen ts and the 
prefectures Kagoshima and Aichi were added. According to the information provi ded, the Panel understands 
that the prefectures subject to pre -export testing have not changed since this time. On 6 September 2013, 
Korea's blanket import ban was app lied to fisheries products from Aomori, Iwate, Miyagi, Fukushima, Ibaraki, 
Tochigi, Gunma  and Chiba, and as such pre -export testing was no longer relevant. See Korea's Ministry of 
Food, Agriculture, Forestry and Fisheries, "Notification of adjusted areas s ubject to radioactive material 
inspection certificate requirements for Japanese fisheries  products" (26 September 2012) (redacted), (Exhibit 
KOR-76) and Korea's Ministry of Food and Drug Safety, Press Release, "Notice of Temporary Special Measure 
for Safet y for Food  Imported from Japan" (6  September 2013) (English translation), ("MFDS notice f or 2013 
blanket import ban and additional testing requirements "), (Exhibit JPN -75.b).  
252 See Japan's first written submission, para. 127 and footnote 192.  
253 Japan's res ponse to Panel question No. 111(c).  
254 Korea's comments on Japan's response to Panel quest ion No. 111(c).  
255 During the second meeting, Korea indicated that for certain commodities (mushrooms, blueberries) 
from certain countries (Ukraine, Belarus, their neig hbouring countries; and China), caesium is tested more 
frequently at the Korean border th an for most food imports from third sources. S ee Korea's response to Panel 
question No. 23 and Korea's comments on Japan's response to Panel question No. 136 which specified the 
frequency of caesium testing for food imports from third countries . 
256 Korea Fo od and Drug Administration, Press Release, "Import -stage Radiation Inspection on Fresh 
Agricultural/Forest Production Originating in Japan Enhanced" (14 March 2011), ( Exhibit JPN -82.b).  WT/DS495/R  
 
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  basis.257 A few days later258 KFDA extended the scope of non -fishery products for which samples 
from every consignment are tested for caesium and iodine at the border to all agro -forestry 
products (fresh, dried, refrigerated and fro zen), processed foods, food additives  and health 
functional foods imported from Japan. By the end of March 2011, MIFAFF had broadened the scope 
of its testing requirements even further so that samples from every consignment of fishery 
products from all Japanese prefectures were required to be  tested for caesium and iodine at the 
border. This testing of samples from every consignment for all Japanese products imported into 
Korea remains in place to this day. During the second meeting, Korea averred that caes ium testing 
of every consignment at t he border is applied to all consignments from Japan except if products 
are accompanied by a pre -export certificate for caesium testing indicating that caesium is above 1 
but below 100 Bq/kg and certificates attesting th at the additional radionuclides are w ithin the 
Codex levels.259   
2.97.   Japan does not challenge Korea's requirements that all consignments from Japan, 
regardless of product or prefecture of origin, be tested for caesium at the border.260 
2.7.3   Testing for additional radi onuclides  
2.98.   The third and last require ment for non -fishery products (except livestock) from all Japanese 
prefectures, put in place by KFDA in early May 2011, required that, when caesium is detected, an 
"additional certification and testing on strontium, plu tonium, etc. shall be requested."261 Two 
weeks earlier, administrative instructions  were sent to enforcement agencies by KFDA specifying 
that when caesium is detected "within the domestic standard limit, additional certification shall be 
requested (…) which confirms that the product has not bee n contaminated with 'other 
radionuclides such as plutonium and strontium'".262 The administrative instructions  provided a 
table with 17 out of the 20 Codex radionuclides and their corresponding Codex limits (I -131, Cs -
134 and Cs -137, Sr-90, Pu -238, 239, 240  are included in this table; H -3, C-14 and Tc -99 are not 
included). The notice indicates that the standards adopted by Codex are applied to the 
radionuclides subject to additional certification, and that the analytical r eport of the additional 
radionuclide certification must be made "either by [a] Japanese official laboratory or by [a] 
laboratory designated by the Government of Japan".  
2.99.   In the case of fishery and livestock products, the May 2011263 information document by 
MIFAFF setting up the requirements for a pre -export certificate for caesium testing from 13 
prefectures and certificate of origin from all prefectures indicated that "when certificate and testing 
standards for radionuclides including strontium and plutonium become available in the future, 
additional certification for other radionuclides are expected to be requested".  
                                                
257 Korea Prime Minister's Office, Press Release, "Prime Minister Hwang -Shik Kim Demand Stringent 
Inspection of Imported Food Products" (23 March 2011), (Exhibit JPN -84.b).  
258 Korea Food and Drug Administration, Press Release, "KFDA Expands  Scope of Radiation Inspection to 
Cover Dried Agricultural/Forest Products, Processed Foo ds, etc. from Japan " (21 March 2011), 
(Exhibit  JPN-83.b).  
259 Korea's response to Panel question No. 129. The revised Annex B submitted with Korea's responses 
to the Pan el questions after both the first and second meeting also assert this exception. In suppo rt of this 
contention Korea cites to the language of the 2011 press release announcing the additional testing 
requirements. In particular, Korea relies on the wording:   
[w]here iodine or cesium (134Cs+137Cs) is detected in the food products but within the 
domestic standard limit, additional certification shall be requested to importer with analytical 
report which confirms that the product has not been contaminated with ‘other radionuclides such 
as plutonium and strontium.  
See Korea Food & Drug Administratio n, "Instruction of Changed Measure including Certificate of Food 
Imports Originated from Japan" , (KFDA 2011 Instruction on new certification requirements for Japanese food), 
(Exhibit KOR -40.b). It is not clear to the Panel that detection "at the import sta ge" refers to pre -export testing 
in Japan rather than the at -the-border testing called for in the measures.  
260 See Japan's first written submission, para. 127 and fn. 1 92. 
261 Status of KFDA's Response and Management Measures Regarding the Japanese Nuclear Cr isis (5) , 
(Exhibits JPN -55.b (revised), KOR -72 (revised)).  
262 KFDA 2011 Instruction on new certification requirements for Japanese food , (Exhibit KOR -40.b).  
263 Korea Nat ional Fishery Inspection Services, "Notification of Strengthened Inspection on Fishery 
Products Originated from Japan" (4 May 2011), (Exhibit KOR -75). WT/DS495/R  
 
- 57 - 
 
  2.7.4   Expanded testing for additional radionuclides  
2.100.   More than two years later, in September 2013264, Korea adopted three additional measures: 
(1) exten ding the requirements for additional testing to fishery and livestock products; (2) 
lowering the maximum tolerance level for caesium (both Cs -134 and Cs -137) to 100 Bq/kg, which 
is the level used in Japan ; and  (3) a "blanket" import ban  on all fishery prod ucts from eight 
prefectures . Korea adopted these measures soon after news reports that there had been 
continuing releases of contaminated water into the ocean that had not previously been 
disclosed.265 The caesium level is addressed in se ction 2.7.5 below  and the blanket import ban in  
2.7.7 below . 
2.101.   In a press release from the P rime Minister's Office of 6 September 2013 Korea announced 
that testing "regarding [the] p resence of other nuclides such as plutonium and strontium" for all 
fishery and livestock products from any Ja panese prefecture was mandatory if "even trace 
amounts" of caesium was detected . On the same day KFDA sent a communication to the following 
agencie s: Head of Ministry of Food and Drug Safety, National Institute of Food and Drug Safety 
Evaluation, Minister of Oceans and Fisheries (Head of Aquaculture Policy Division), National 
Fisheries Products Quality Inspection Service (Head of Quarantine Inspectio n Division). The 
communication stated that "it will be required to submit additional test certificate on othe r nuclides 
as specified by [Codex] regarding radiation level."266 The communication also noted that the 
measure would take effect on 9 September 2013 . The effective date was also included in  Korea's 
notification to the WTO on 16  September 2013. 267 
2.102.   Japan challenges Korea's requirement to test for additional radionuclides if caesium or 
iodine is detected, as applied to both non -fishery (2011 and 2013 for livestock) and fishery 
products (2013). The parties disagree about various factual aspects of the requirement to test for 
additional radionuclides: the location where the testing for additional radionuclides must take place 
– whether necessarily in Japan o r not - the level of caesium or iodine that would trigger the 
requirement to test for the addition al radionuclides, and which additional radionuclides would be 
tested and for what tolerance levels . The factual issues under dispute will be dealt with in the  
section 7.5 below .  
2.7.5   Caesium -134 and caesium -137 threshold levels  
2.103.   As part of its response to the FDNPP accident, Korea lowered its Cs -134 and Cs -137 levels 
in food products. Korea first aligned its Cs -134 and  Cs-137 levels for products import ed from 
Japan to Japan's tightened levels on 1 April 2012 ( Table  5). In particular, the maximum level for 
general food products imported from Japan into Korea was lowered from 370 Bq/kg to 100 Bq/kg. 
On 9 September 2013, K orea extended this 100 Bq/kg level  for Cs -134 and Cs -137 to all general 
food products regardless of the origin.268 Japan does not challenge any of Korea's radionuclide 
levels .  
                                                
264 Korea Prime Minister's Office, Press Release, "Government Bans Import of All Fishery Products from 8 
ken near Fukushima" (6 September 2013), (" PMO Blanket Import Ban and Additional Testing Req uirements 
Press Release" ), (Exhibit JPN -3.b). 
265 Korea's first written submission, paras. 39 -56. Korea refers to: A. Slodkowski and M. Saito, 
Fukushima clean -up turns toxic for Japan's Tepco, Reuters , 30 July 2013, http://www.reuters.com/article/us -
japan -fukushima -nuclear -idUSBRE96T1BC20130730, (Exhibit KOR-41); A. Slodkowski and M. Saito, REFILE -
Japanese utility, and the public, in dark about crippled nuclear plant, Reuters , 30 July 2013, 
http://www.reuters.com/article/japan -fukushima -nuclear -idUSL4N0FZ31J2 0130731, (Exhibit KOR -42); J. 
Adelman and Y. Oka da, "Tepco President Apologizes for Fukushima Leak Disclosure Delay", Bloomberg , 26 July 
2013, http://www.bloomberg.com/news/articles/2013 -07-26/tepco -president -apologizes -for-fukushima -leak-
disclosure -delay,  (Exhibit KOR -43). 
266 MFDS notice for 2013 blanke t import ban and additional testing requirements, (Exhibit JPN -75.b).  
267 G/SPS/N/KOR/454.   
268 PMO Blanket Import Ban and Additional Testing Requirements Press Release , (Exhibit JPN -3.b). WT/DS495/R  
 
- 58 - 
 
  Table 5 : Japan and Korea's caesium -134 and caesium -137 levels over time  
Product 
type Codex Level 
(Bq/kg)  Japan's caesium (Cs -134, 
Cs-137) level (Bq/kg)  Korea's caesium (Cs -134, Cs -137) level 
(Bq/kg)  
  Before 1 
April 2012  After 1 April 
2012  Prior to 
FDNPP 
accident  For Japanese 
imports after 
1 April 2012 
until present  For products 
from all 
origins 
(other than  
products 
from Japan) 
after 9 
September 
2013  until 
present  
General 
food 1000 500 100 370 100 100 
Milk and 
dairy 
products  1000 200 50 370 50 100 
Beverages  1000 200 10 10 10 10269 
 
2.7.6   Product -specific import bans  
2.104.   Korea quickly put in place bans on specific products from certain locations within Japan 
following the FDNPP accident. These product -specific import bans coincided with and generally 
followed the distribution restrictions Japan applied within its own terri tory.270 Following the 
detection of radiation levels exceeding 500 Bq/kg in Japanese spinach, in March 2011271 the KFDA 
put in place its first product -specific import bans on non -fishery products from five prefectures.272 
As of the Panel's establishment on 28 Se ptember 2015 , 27 non -fishery products from 13 
prefectures273 are subject to product -specific import bans.274 Japan does not challenge any of 
Korea's non -fishery product -specific import bans.275  
2.105.   MIFAFF also progressively imposed product -specific import bans on 50 fishery products 
from 8 prefectures between 20 April 2011 and 8 August 2013.276 Japan challenges Korea's  
product -specific import bans with regards to two fishery products: Alaska pollock from Fukushima 
and Pacific cod from five prefectures: Aomori, Fukushima, Ibaraki, Iwate an d Miyagi.  
2.106.   The import ban on Alaska pollock from Fukushima began to apply on 22 June 2012 and the 
bans on Pacific cod from Iwate, Miyagi, Fukushima, Aomori and Ibaraki between 2 May 2012 and 
9 November 2012. In setting these product -specific bans, Korea fo llowed Japa n's own product -
specific distribution restrictions. Whereas the Korean product -specific bans are still in force, the 
Japanese bans for these fishery products from the prefectures at hand were removed between 
                                                
269 Korea's level for ca esium in beverages is based on the WHO Guideline s on Drinking Water Quality 
(2006).  
270 Korea Prime Minister's Office, Press Release, "Temporary Import Suspension of Foods from Regions 
in Japan Contaminated with Radioactivity" (25 March 2011) (English transl ation), (Exhibit JPN -170.b).  As 
noted previousl y, certain product -specific distribution restrictions in Japan remain in place and can be found at 
http://www.mhlw.go.jp/englis h/topics/2011eq/index_food_press.html , referred  to in Japan's response to Panel 
question No. 28 . 
271 KFDA 14 April 2011 Press Release , (Exhibits JPN -55.b (revised)), (Exhibit KOR -72 (revised)) . 
272 Chiba, Fukushima, Gunma, Ibaraki and Tochigi.  
273 Aomori, Chiba , Fukushima, Gunma, Ibaraki, Iwate, Kanagawa, Miyagi, Nagano, Saitama, Shizuoka, 
Tochigi and Yamanashi. See Korea Prime Minister's Office, Press Release, "Temporary Import Ban on food from 
regions contaminated by radioactivity in Japan" (25 March 2011), (E xhibit KOR -36); Korea Food & Drug 
Administration, "Response and Management Trends of the Korea Food and Drug Administration Related to the 
Nuclear Power Plant Accident in Japan" (20 March 2013), (Exhibit KOR -38). 
274 Information on these products is availabl e in Japanese on the Ministry of Agr iculture, Forestry and 
Fisheries website: http://www.maff.go.jp/j/export/e_info/pdf/kisei_all_160718.pdf . 
275 Japan's responses to Panel questi on Nos. 7and 28.  
276 Aomori, Chiba, Fu kushima, Gunma, Ibaraki, Iwate, Miyagi and Tochigi.  WT/DS495/R  
 
- 59 - 
 
  October 2012 and February 2015 (Table  6) followi ng inspections confirming that caesium levels 
have fallen below the tolerance level in a stable manner.  
Table 6 : Distribution restrictions on pacific cod and Alaska pollock in Japan and Korea  
Product -specific distribution restrictions  
Product(s ) Prefectur e(s) JAPAN  KOREA  
adopted  status  adopted  status  
Alaska 
pollock  Fukushima  22/06/2012277 removed on 17/12/2013278  22/06/2012279 still in force  
Pacific cod  Fukushima  22/06/2012280 removed on 24/02/2015281 22/06/2012282 Still in force  
Pacific cod  Aomori  27/08/2012283 removed on 31/10/2012284 27/08/2012285 still in force  
Pacific cod  Iwate  02/05/2012286 removed on 17/01/2013287 02/05/2012288 still in force  
Pacific cod  Miyagi  02/05/2012289 removed on 17/01/2013290 02/05/2012291 still in force  
Pacific cod  Ibaraki  09/11/2012292 removed on 20/11/2014293 09/11/2012294 still in force  
                                                
277 Japan Ministry of Health, Labour and Welfare, Press Release, "Insurance and cancellation of 
Instruction to restrict of distribution of foods b ased on the Act on Special Measures Concerning Nuclear 
Emergency Preparedness, direction of Director -General of the Nuclear Emergency Response Headquarters" 
(Ban, Alaska Pollock and Pacific Cod - Fukushima) (22 June 20 12), (Exhibit JPN -119.b ). 
278 Japan Ministry of Health, Labour and Welfare, Press Release,  "Cancellation of Instruction to restrict 
distribution of foods based on the Act on Special Measures Concerning Nuclear Emergency Preparedness, 
direction of Director -General of the Nuclear Emerge ncy Response Headquarters" (Lift, Alaska Pollock - 
Fukushima) (17  December 2013) (English translation), (Exhibit JPN -125.b) . 
279 Korea Ministry of Food, Agriculture, F orestry and Fisheries, Press Re lease, "Temporary Import 
Suspension on 35 Fishery Products, including Yellowfish from Fukushima -ken, Japan" (Product -Specific ban on 
35 Fishery Products from Fukushima) (26 June 2012), (Exhibit JPN -77.b). 
280 Japan Ministry of Health, Labour and Welfare, Press Release, "Insurance and cancellation of 
Instruction to restrict of distribution of foods based on the Act on Special Measures Concerning Nuclear 
Emergency Prep aredness, direction of Director -General of the Nuclear Emer gency Response Headquarters 
(22 June 2012), (Exhibit JPN -119.b ). 
281 Japan Ministry of Health, Labour and Welfare, Press Release, "Cance llation of Instruction to restr ict 
distribution based on the Act on Special Measures Concerning Nuclear Emergency Preparedness, direction of 
Director -General of the Nuclear Emergency Response Headquarters" (24 February 2015), (Exhibit JPN -120.b ). 
282  Product -Specific ban on 35 Fishery Products from Fukushima, (Exhibit JPN -77.b). 
283 Japan Ministry of Health, Labour and Welfare, Press Re lease,  "Restriction of distrib ution of foods 
based on the Act on Special Measures Concerning Nuclear Emergency Preparedness, direction of Director -
General of the Nuclear Emergency Response Headquarters" (27 August 2012), (Exhibit JPN -121.b ). 
284 Japan Ministry of Health, Labour and Welfare, Press Release,  "Cancellation of Instruction to restrict 
distribution of foods based on the Act on Special Measures Concerning Nuclear Emergency Preparedness,  
direction of Director -General of the Nuclear Emergency Response Headquarte rs" (31 October 2012), 
(Exhibit  JPN-122.b ). 
285 Korea Ministry of Food, Agriculture, Forestry and Fisheries, Press Relea se, "Temporary Import 
Suspension on Cod from Aomori -ken, Japan" (Product -Specific ban on Cod from Aomori) (29 August 2012), 
(Exhibit JPN -78.b). 
286 Japan Ministry of Health, Labour and Welfare, P ress Release, "Restric tion of distribution of foods 
based on the Act on Special Measures Concerning Nuclear Emergency Preparedness, direction of Director -
General of the Nuclear Emergency Response Headquarters" (2 May 2012),  (Exhibit JPN -117.b ). 
287 Japan Ministry of Health, Labour and Welfare, Press Release, "Cancellation of Instruction to restrict 
distribution of foods based on the Act on Special Measures Concerning Nuclear Emergency Preparednes s, 
direction of Direct or-General of the Nuclear Emergency Response Headquarte rs" (17 January 2013), 
(Exhibit  JPN-118.b ). 
288 Korea Ministry of Food, Agriculture, Forestry and Fisheries, Press Rel ease, "Temporary Impor t 
Suspension on Cod from Miyagi -ken and Iwate -ken, Japan" (Product -Specific ban on Cod from Miyagi and 
Iwate) (3 May 2012), (Exhibit JPN -76.b). 
289 Japan Ministry of Health,  Labour and Welfare, P ress Release, "Restriction of distribution of foods 
based on the Act on Special Measures Concerning Nuclear Emergency Preparedness, direction of Director -
General of the Nuclear Emergency Response Headquarters" (2 May 2012), (Exhibit J PN-117.b ). 
290 Japan Ministry of Health, Labour and Welfare, Press Release, "Cancellation of Instruction to restrict 
distribution of foods based on the Act on Special Measures Concerning Nuclear Emergency Preparedness , 
direction of Director -General of the Nuclear Emergency Response Headquarte rs" (17 January 2013), 
(Exhibit  JPN-118.b ). 
291 Product -Specific ban on Cod from Miyagi and Iwate , (Exhibit JPN -76.b). 
292 Japan Ministry of Health, Labour and Welfare, Press Release,  "Issuance and cancellation of 
Instruction to restrict distribution based on the Act on Special Measures Co ncerning Nuclear Emergency WT/DS495/R  
 
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  2.7.7   Blanket import ban  
2.107.   In 2013, in a press release from Korea's Prime Minister's Office on 6 September295, Korea 
announced not only the lowering of its Cs -134 and Cs -137 maximum level and the extension of its  
additional testing requirements to fishery and livestock products, but also an import ban on all 
fishery products from the following eight prefectures : Aomori, Chiba, Fukushima, Gunma, Ibaraki, 
Iwate, Miyagi and Tochigi. Japan refers to th is as a "blanket  import ban" to distinguish it from the 
product -specific bans imposed between 20 April 2011 and 8 August 2013 with respect to 50 
fishery products from these same 8 prefectures. The blanket import ban overlaps with the product -
specific bans,  but also goes b eyond them. Japan only challenges the blanket import ban with 
regards to 28 fishery products listed in Table 7 below.  
2.108.   Japan explains in response to a Panel question , as noted above,  that under Korea 's import 
bans, origin may be conferred b y the "place of harvest", the place of "processing", or the place 
"packaging". Hence in table 7 provided by Japan and which the Panel reproduces in relevant part 
below, the place of harvest has been separated from the place of processing/packaging. The 
information in the table may be summarized as follows:  First, for each of the 28 fishery products  
at issue, Korea 's measures apply where the "place of harvest" is one of the eight prefectures. 
Gunma and Tochigi prefectures are landlocked (see Figure 4 below) . Therefore, no harvest of the 
28 fishery products takes place in these two prefectures. However, most of the 28 fishery products  
may be "harvested" from any of the 6 coastal prefectures at issue. These are Aomori, Iwate, 
Miyagi, Fukushima, Ibara ki and Chi ba.  
2.109.   For each of  the 28 fishery products , Korea 's measures also apply where the fish is 
processed or packed in any of the 8 prefectures, irrespective of the place of harvest of the fish.  
Each of the 28 fishery products  may be the subject of processing or packing activiti es undertaken 
in any of the 8 prefectures at issue. These are Aomori, Iwate, Miyagi, Fukushima, Ibara ki, Chiba, 
Gunma and Tochigi.  
2.110.   As for the product -specific bans, the Panel  recall s that Japan only challenges those that 
affect Alaska pollo ck and Pacific c od from five prefectures, which are also subject to the blanket 
import ban. Therefore, Japan's entire claim with respect to import bans is limited  to these 28 
fishery products.  
Table 7: Products covered by the import bans that are the subj ect of Japan's c laims  
Product  Place of Harvest  Place of 
processing or 
packing, 
irrespective of 
place of harvest  
Alaska  pollock296 (Theragra chalcogramma ) All 6 coastal prefectures297 All 8 prefectures298 
Pacific cod299 (Gadus macrocephalus)  All 6 coastal prefectures  All 8 pref ectures  
Abalone  ( Haliotis spp .) All 6 coastal prefectures  All 8 prefectures  
Albacore ( Thunnus alalunga )  All 6 coastal prefectures  All 8 prefectures  
                                                                                                                                                  
Preparedness, direction of Director -General of the Nuclear Em ergency Response Headquarters" (Ban, Pacific 
Cod - Ibaraki) (9  November  2012), (Exhibit JPN -123.b ). 
293 Japan Ministry of Health, Labour and Welfare, Press Release,  "Cancellation of Instruction  to restrict 
distribution based on the Act on Special Measures Concerning Nuclear Emergency Preparedness, direction of 
Director -General of the Nuclear Emergency Respons e Headquarters" (Lift, Pacific Cod - Ibaraki) 
(20 November  2014), (Exhibit JPN -124.b ). 
294 Korea Ministry of Food, Agriculture, Forestry and Fisheries, Press Release, "Temporary Import 
Suspension  on Cod from Ibaraki -ken, Japan" (Product -Specific ban on Cod from Ibaraki) (13 November  2012), 
(Exhibit JPN -79.b). 
295 PMO Blanket Import Ban and Additional Testing Requirements Press Release , (Exhibit JPN -3.b). 
296 The first product -specific ban on Alaska p ollock from Fukushima prefectur e was imposed 
on 22 June 2012. Korea included Alaska po llock in the blanket import ban on e ight prefectures on 
9 September  2013.  
297 The six coastal prefectures are Aomori, Iwate, Miyagi, Fukushima, Ibaraki and Chiba.  
298 The eig ht prefectures are Aomori, Iwate, Miyagi, Fukushima, Ibaraki, Chiba, Gunma and Tochigi . 
299 Pacific cod was banned from various prefectures from 2 May 2012 to 9 November 2012. Korea 
included Pacific cod in the blanket import ban on eight prefectures on 9 Sep tember 2013.  WT/DS495/R  
 
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  Product  Place of Harvest  Place of 
processing or 
packing, 
irrespective of 
place of harvest  
Alfonsino ( Beryx splendens ) All 6 coastal prefectures  All 8 prefectures  
Anchovy (Engraulis japonicus)  All 6 coastal prefectures  All 8 prefectures  
Bigeye tuna ( Thunnus obesus ) All 6 coastal prefectures  All 8 prefectures  
Blue shark ( Prionace glauca ) All 6 coastal prefectures  All 8 prefectures  
Bluefin tuna ( Thunnus orientalis ) All 6 coastal prefectures  All 8 prefectures  
Chestnut octopus (Octopus conispadiceus)  All 6 coastal prefectures  All 8 prefectures  
Chub mackerel (Scomber japonicus)  All 6 coastal prefectures  All 8 prefectures  
Chum salmon (Oncorhynchus keta)  All 6 coastal prefectures  All 8 prefectures  
Common octopus (Octopus vulgaris)  All 6 coastal prefectures  All 8 prefectures  
Common sea squirt (Halocynthia roretzi)  Aomori, Iwate, Miyagi, Fukushima300 All 8 prefectures  
Giant Pacific octopus (Paroctopus dofleini)  All 6 coastal prefectures  All 8 prefec tures 
Japanese amberjack (Seriola quinqueradiata)  All 6 coastal prefectures  All 8 prefectures  
Japanese flying squid (Todarodes pacificus)  All 6 coastal prefectures  All 8 prefectures  
Japanese jack mackerel (Trachurus japonicus)  All 6 coastal prefectures  All 8 prefectures  
Japanese sardine (Sardinops melanostictus)  All 6 coastal prefectures  All 8 prefectures  
Pacific oyster (Crassostrea gigas)  All 6 coastal prefectures  All 8 prefectures  
Pacific saury (Cololabis saira)  All 6 coastal prefectures  All 8 prefe ctures  
Salmon shark ( Lamna ditropis ) All 6 coastal prefectures  All 8 prefectures  
Scallop ( Mizuhopecten yessoensis ) Aomori, Iwate, Miyagi, Fukushima301 All 8 prefectures  
Skipjack tuna ( Katsuwonus pelamis ) All 6 coastal prefectures  All 8 prefectures  
Southe rn mackerel ( Scomber australasicus ) All 6 coastal prefectures  All 8 prefectures  
Striped marlin ( Kajikia audax ) All 6 coastal prefectures  All 8 prefectures  
Swordfish ( Xiphias gladius ) All 6 coastal prefectures  All 8 prefectures  
Yellowfin tuna ( Thunnus al bacares ) All 6 coastal prefectures  All 8 prefectures  
Source: Japan's response to advance Panel question No. 14.  
2.111.   Figure 4  below shows a graphic depiction of the prefectures subject to Korea's various 
measures and requirements:  
                                                
300 In light of environmental conditions in the eight prefectures, this product may come only from the 
four prefectures listed.  
301 In light of environmental conditions in the eight prefectures, this product may come only from the 
four prefectures  listed.  WT/DS495/R  
 
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  Figure 4: Current distributi on of prefectures subject to Korea's measures and 
requirements following the FDNPP accident  
 
Source: WTO Secretariat.302 
 
2.8  The measures Japan challenges  
2.112.   As noted above, Japan does not challenge all of the measures Korea has imposed in 
response to the FDNPP accident and its aftermath.  
2.113.   In these proceedings, Japan challenges the additional testing requirements dat ed 2011 for 
non-fishery products (except livestock) and dated 2013 for fishery and livestock products when 
trace amounts of caesium or iodine are det ected.  
2.114.    Japan also challenges two types of import bans:  
a. the product -specific import bans dated 2012 on Al aska pollock from Fukushima and on 
Pacific cod from Aomori, Iwate, Miyagi, Ibaraki and Fukushima;  
b. the blanket import ban dated 2013 on all fishery p roducts from 8 prefectures for 28  
fishery products .  
                                                
302 Incorporating comments from the parties in response to Panel question No. 5. See also Korea's 
comments on the draft descriptive part of the Report.  
WT/DS495/R  
 
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  2.115.   Table 8 summarizes the challenged measures, the produc ts and regions that they apply to, 
and the d ate on which they were imposed.  
Table 8: Korean measures that Japan challenges  
CONTENT OF THE 
MEASURE  PRODUCTS COVERED BY JAPAN'S CLAIMS  PREFECTURES IN 
WHICH THE 
MEASURE APPLIES  DATE OF 
IMPOSITION 
OF THE 
MEASURE  
Additional 
radionuclides  
must be tested for 
when trace 
amounts of c aesium 
or iodine are 
detected  All agro -forestry products, processed foods, food 
additives and health functional foods  All 47 prefectures  1 May 2011  
Product -specific 
ban Pacific cod  Miyagi, Iwate  2 May 2012  
Product -specific 
ban Pacific cod, Alaska pollock  Fukushima  22 Jun 2012  
Product -specific 
ban Pacific cod  Aomori  27 Aug 2012  
Prod uct-specific 
ban Pacific cod  Ibaraki  9 Nov 2012  
Blanket import 
ban 28 fishery products  
 Aomori, Chiba, 
Fukushima, Gunma, 
Ibaraki, Iwate, Miyagi 
and Tochigi  9 Sep 2013  
Additional 
radionuclides 
must be tested 
when more than 
trace amounts of  
caesium or iodi ne 
are  detected  All fishery and livestock products  All 47 prefectures  9 Sep 2013  
 
  WT/DS495/R  
 
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  2.116.   Figure 5 shows the chronology of the imposition of Korea's measures. The measures below 
the line are those that are challenged by Japan.  
Figure 5: Chronology of impositio n of Korea's measures  
 
 
3  PARTIES' REQUESTS FO R FINDINGS AND RECOM MENDATIONS  
3.1.   Japan requests t hat the Panel find that:  
a. with respect to the import bans and the additional testing requirements, Korea failed to 
comply with the transparency requirements in Ar ticle 7 and paragraphs 1 and 3 of Annex 
B to the SPS Agreement;  
b. Korea 's import bans on the 28 fisheries products identified in Table 7, and Korea 's 
additional testing requirements, are inconsistent with Articles 2.3 and 5.6 of the 
SPS Agreement.  
c. Korea 's additional testing requirements are inconsistent with Article 8 and paragraphs 
1(a), 1(c), 1(e) and 1(g) of Annex C to the SPS Agreement.  
3.2.  Japan further requests that the Panel recommend that Korea bring its import bans and 
additional testing requirements int o conformity with its WTO obligations.  
3.3.  Korea requests that the Panel reject Japan's claims in this dispute in their entirety.  
4  ARGUMENTS OF THE PAR TIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the 
Panel in accorda nce with paragraph 21 of the Working Procedures adopted by the Panel (see 
Annexes B -1 and B -2). 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
25 March 2011  
All consignments of 
food imports from 
Japan are tested 
for caesium and 
iodine at the 
Korean border.  
14 May 2011  
Fishery and livestock products:  
-require a pre -export 
certificate for caesium 
testing (13 prefectures); and  
-require a certificate of origin 
(all prefectures).  
1 April 2012  
Caesium tolerance 
level for food imports 
from Japan is 
lowered from 370 to 
100 Bq/kg.  
1 June 2012  
The list of prefectures for 
which fishery products 
require a pre -export 
certificate for caesium 
testing is modified.  
15 October 2012  
The list of prefectures 
for which fishery 
products require a pre -
export certificate for 
caesium testing is 
modified.  
1 May 2011  
Non-fishery products except livestock:  
-require a pre -export certificate for 
caesium testing (13 prefectures);  
-require a certificate of origin (all 
prefectures); and  
-must  test for additional 
radionuclides if trace amounts 
of caesium or iodine are  
detected (all prefectures).  
2 May 2012  
Ban on Pacific cod 
from Miyagi and 
Iwate.  
22 June 2012  
Ban on Pacific cod and 
Alaska pollock from 
Fukushima  
27 August 2012  
Ban on Pacific cod 
from  Aomori  
9 November 2012  
Ban on Pacific cod 
from Ibaraki  
9 September 2013:  
-Caesium tolerance level  for all food in Korea 
is lowered from 370 to 100 Bq/kg;  
-a blanket import ban is imposed on all 
fishery products from eight prefectures , 
resulting in eight prefectures requiring a pre -
export certificate for caesium testing; and  
-fishery and livestock must test for 
additional radionuclides if caesium is 
detected (all prefectures).  
11 March 2011  
FDNPP accident  
 
MEASURES CHALLENGED  BY JAPAN  
September 
2013  
Press reports of 
previously 
undisc losed leaks 
at FDNPP   WT/DS495/R  
 
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  5  ARGUMENTS OF THE THI RD PARTIES  
5.1.  The arguments of Brazil, Canada, the European Union, New Zealand, Norway and the United 
States are reflected in their executive s ummaries, provided in accordance with paragraph 22 of the 
Working Procedures adopted  by the Panel (see Annexes C -1, C-2, C-3, C-4, C-5, C-6). China, 
Guatemala, India, the Russian Federation, and Chinese Taipei did not submit written  or oral 
arguments to th e Panel . 
6  INTERIM REVIEW  
6.1.  The Panel issued its Interim Report to the parties on 23 August 2017. The parties each 
submitted written requests for review of precise aspects of the Interim Report on 19 September 
2017. Neither party requested an interim review me eting. The parties submit ted comments on 
each other's requests for review on 29 September 2017.  
6.2.  In accordance with Article 15.3 of the DSU, this section  of the Panel Report sets out the 
Panel's response to the parties' requests for review of precise aspec ts of the Report made at the 
interim review stage. The Panel has modified aspects of its Report in light of the parties' comments 
where it considered it appropriate, as explained below.  
6.3.  Except where otherwise specifically indicated, the references to para graph numbers in this 
section (and throughout this report) refer to the paragraph, section and footnote numbers in this 
Final Report and not the numbering in the Interim Report.  
6.4.  Both parties made requests for the Panel to clarify certain factual aspects or  include 
additional eleme nts of , or citations to , their arguments or exhibits or to the answers of the 
experts. The Panel has made changes  in the following aspects of the Panel Report  to respond to 
these requests : paragraphs 1.11, 1.26,  1.30, 2.1, 2.3 (foo tnote 52), 2.6 (footnote 54), 2.11, 2.12, 
2.13, 2.14, 2.18 ( including  Table 1 and footnote 77), 2.28, 2.30, 2.37 (and  footnote 114), 2.38 
(and footnote 117), 2.41 (and footnote 131) , 2.49 (and footnote 148), 2.52 , 2.59, 2.60  (and 
footnotes 174, 176, 179, and 180) , 2.61  (and footn ote 182) , 2.62  (and footnote 183) , 2.63, 2.68, 
2.69, 2.70 (and footnote 207) , 2.76  (and footnote 226) , 2.78 ( and footnote 232), 2.79 (and 
footnotes 234 and 235) , 2.84, 2.85, 2.87, 2.98, 2.10 0, 7.26 (footnote 429), 7.34, 7.38, 7.44,  
7.46, 7.54, 7.65, 7.66, 7.70, 7.87, 7.9 1, 7.126, 7.136 (footnote  652), 7.149, 7.151, 7.154, 7.155, 
7.168, 7.174, 7.175, 7.181, 7.183, 7.184, 7.194, 7.195, 7.198  (and footnote 785) , 7.199, 7.200, 
7.202,  7.205 (footnote 834),  7.206  (and footnotes 809 and 81 0), 7.208, 7.209, 7.210, 7.213 , 
7.214 , 7.219, 7.220,  7.223 (footnote 846), 7.224, 7.22 5, 7.22 8, 7.229, 7.231, 7.233, 7.234, 
7.235, 7.236, 7.237  (and footnotes 883 and 884), 7.239,  7.241,  7.242, 7.243, 7.246, 7.250. 
7.251, 7.258, 7.261,  7.263, 7.265, 7.267,  7.278, 7.282  (footnote 998), 7.28 4, 7.285, 7.286  
(footnote 977) , 7.290, 7.301, 7.30 2, 7.30 5, 7.30 6, 7.30 8, 7.310, 7.311, 7.31 5 (and footnote 
1047) , 7.321, 7.32 2, 7.32 5, 7.335, 7.341, 7.350, 7.351, 7.354, 7.363 (footnote 1 155), 7.37 6, 
7.382, 7.398, 7.443, 7.460, 7.461, 7.463, 7.465 , 7.473, 7.474,  7.512, and 7.515 . The Panel has 
also made changes to the Glossary of Terms, Table s 1, 9, 11, 12, and 13 -18, and Figure 4 . 
6.5.  In addition to the requests by the parties, discussed below, corrections were made to correc t 
typographical  errors , verify citations, and make  stylistic and other non -substantive changes to  the 
Report, including those identified by the parties.   
6.1   The purpo se and scope of interim review  
6.6.  Before addressing the specific requests of the parties not re ferred to above, the Panel would 
like to recall the purpose and scope of interim review. The Panel recalls that Article 15.2 of the 
DSU, and paragraph 23 of the Pan el's Working Procedures, provide parties with an opportunity to 
request the Panel to "review  precise aspects of the interim report". The interim review is not the 
time to deal with general comments about the Panel's reasoning or requests to revise entire 
sections of the Report without particular items being specified. Our understanding of the pur pose 
of the interim review is consistent with the approach adopted by previous panels.303 We will review 
                                                
303 Panel Report, India – Agricultural Products , paras. 6.5 -6.6; Panel Reports, Japan – Alcoholic 
Beverages II , para. 5.2; Australia – Salmon , para. 7.3;  Japan –Apples  (Article 21.5 – US), para. 7.21; India – 
Quantitative Restrictions , para. 4.2; Canada – Continued Suspension , paras. 6.16 -6.17; and US – Continued 
Suspension , paras. 6.17 -6.18. WT/DS495/R  
 
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  our Interim Report only in light of comments made by the part ies which relate to "precise aspects" 
of the Interim Report.   
6.7.  Both parties have asked the Pa nel to augment or clarify the recitations of their arguments in 
certain areas. The Appellate Body has explained that panels need not refer explicitly to every 
argum ent made, or each piece of evidence adduced by the parties.304 The Panel has the discretion 
to decide whether arguments made or evidence adduced are relevant or necessary to a particular 
claim or legal issue. As noted above, t he Panel has acceded to some of the requests of the parties 
where appropriate. However, the Panel has determined that it is not necessary to include in its 
Report additional insertions the parties ' requested  in the following paragraphs: 2.7, 2.48, sections 
2.5.1 and 2.5.2, 2.69, 2.11 3, 7.6 (footnote 304), 7.42, 7.45,  7.55, 7.52, 7.79, 7.88,  7.92, 7.94  
7.168, 7.170,  7.171,  7.172, 7.196, 7.212, 7.220 , 7.229, 7.235,  7.238,  7.247, 7.313, 7.326 , 
7.456, and 7.462  7. 463, 7. 465, 7.474, 7.484 . The Panel has also not made the requested 
changes in Table s 1 and 10 . In these instances the Panel found the additional language  proposed 
by th e parties  to be unnecessary , addressed elsewhere in the Report, or not germane to the topic 
being discussed.  
6.8.  Finally, the Panel  notes that the Interim Review stage is not the time to raise new 
arguments , re-litigate ones already put before the Panel,  or to  re-open the record. Most 
importantly , the Appellate Body clarified in EC – Sardines that the interim review stage is not the 
time to introduce new evidence.305 The Panel reminded the parties of this in its letter of 
14 September 2017  granting Korea 's reques t for an extension of the date to file its request for 
review of precise aspects of the report.306 Never theless, Korea submitted a new exhibit with its 
request for review of precise aspects of the report. This exhibit is offered to support Korea's 
request th at the Panel modify certain findings with respect to the manner in which Korea made its 
measures avail able to the public and whether that was consistent with the obligations in Article 7 
and Annex B(1) of the SPS Agreement. The Panel notes that Korea was n otified of the potential 
issue through Japan's comments on Korea's answers to the Panel's questions af ter the second 
meeting which were submitted on 17 March 2017 .307 However, Korea did not seek leave to submit 
the documentation to the Panel at any time betw een that date and the issuance of the Interim 
Report.  Consistent with the Appellate Body's approach an d in the interest of protecting Japan's  due 
process rights, the Panel will not  consider the new Korean exhibit. The Panel addresses the 
substance of Korea 's request in section  6.8. 
6.2  Descriptive part 
6.9.  Korea requests that the Panel include a reference to its 12 July letter in paragraph 1.30 and 
also to quote directly  Korea 's arguments in its 7 July letter with respect to the importance of 
Codex. Korea also requests that the Panel delete its conclusion that Korea's letters did no t contain 
language referring to the importance of selecting experts with experience in the assess ment of 
food safety issues having a regulatory impact or food safety risk assessors.308 Japan does not 
oppose adding the additional citation, but opposes the del etion of the Panel's conclusion, because 
Korea has not explained the reason for doing so .309 The Pa nel modified  the paragraph to quote 
directly from Korea's 7 July letter. However, the Panel did not add a reference to the 12 July letter  
in the text of the pa ragraph . The Panel and the parties received a communication from Codex on 
8 July indicating that the names provided by FAO reflected both organizations' suggested experts. 
Therefore, reference to the 12 July letter as having a bearing on this issue would b e inappropriate.  
The Panel note d in the footnote that Korea reiterated its views in its 12 July l etter.  With respect to 
deleting the Panel's conclusion, the Panel  notes that in its request Korea did not point the Panel to 
                                                
304 Appellat e Body Reports, EC – Poultry , para. 135; Dominican Rep ublic – Import and Sale of  
Cigarettes , para. 125; EC – Hormones , para. 138; US – Upland Cotton , para. 446; US – COOL , para. 
410; and EC – Seal Products , para. 5.288.  
305 Appellate Body Report, EC – Sardin es, para. 301. See also Appellate Body Report, EC – Selected 
Customs Matters , para. 259; Appellate Body Report, EC – Bananas III (US) , paras. 6.1 -6.18; Panel Reports, 
EC – IT Products , para. 6.48.  
306 In deciding to extend the deadline, but not grant the ful l amount of time Korea requested, the Panel 
noted that  in making its decision "the Panel took account of the fact that the interim review stage is not an 
opportunity for parties to re -litigate arguments already put before a panel or to adduce 'new and unan swered 
evidence'." Letter from the Panel to the partie s, 14 September 2017 (footnotes omitted).  
307 See Japan's comments on Korea's response to Panel question No. 114.  
308 Korea's request for review of the Interim Report, para. 3.  
309 Japan's comments on Korea's  request for review of the Interim Report, paras. 2 -3. WT/DS495/R  
 
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  the language in these letters that  would support its claim that it specifically referred to the 
importance of having experience in the assessment of food safety issues having a regulatory 
impact or food safety risk assessors prior to the selection of experts. Therefore, the Panel 
maintain s its conclusion.  
6.10.   Korea requests that the Panel add further discussion of the LNT  model  in paragra ph 2.17 as 
well as indicating that there is uncerta inty regarding cancer rates associated with low doses.310 
Japan opposes this request. Japan notes that the Panel accurately reflected the description of the 
LNT m odel and its relationship to uncertainty regarding exposure to low doses of radionuclides. 
Japan also notes that this section is more general backgroun d information and that the Panel goes 
into more detail in the findings about the LNT model and its releva nce to this case.311 The Panel 
notes that the phrasing Korea requests might leave a false impression as to the nature of the 
uncertainty surrounding low doses. The Panel understand s that the uncertainty is that it is 
impossible to definitively correlate adve rse effects (cancers) to low doses of radiation below a 
certain threshold. Therefore, the Panel finds its characterization is an accurate description o f how 
the experts and the literature describe the LNT model and its relationship to low doses of radiatio n. 
6.11.   Japan requests that the Panel modify Table 1 to remove references to the biological  and 
effective  half-lives of the various radionuclides.  Japan not es that the reference source used for the 
biological and effective half -lives was not provided by either party. Japan also suggests that 
instead of including the numbers in the table, the Panel explain the relevance of the biological and 
effective half –life to the calculation of dose coefficients in paragraph 2.18.312 Korea objects to 
Japan's request. Korea notes that the concepts of biological and effe ctive half -lives are critical to 
an evaluation of the risks associated with the consumption of contaminated food. Korea also notes 
that it raised these concepts in its first written submission.313 The Panel did delete the reference to 
effective half -lives in  Table 1 , but maintains the reference to biological half -lives. The Panel add ed 
an explanation of their relevance in paragraph 2.18. The Panel added  a citation to indicate that the 
source for the half -lives is Korea's first written submission .  
6.12.   Japan requests that the Panel delete the reference to leaks at the FDNPP continuing to the 
present day  in paragraph 2.41 and the reference to ongoing spills in paragraph  2.52.314 Korea 
objects arguing that it has presented evidence that there are continuing leaks.315 The Panel notes 
that neither Japan n or Korea dispute that there have been leaks that continued after t he initial 
accident and beyond the date of establishment of the Panel. Therefore, the Panel has altered the 
language to refer to leaks up to the date of establishment of the Panel and beyond . The Panel has 
also added a footnote to Japan's response to quest ion No. 8 from the Panel and a relevant exhibit 
from Korea.  
6.13.   Korea makes general comments that sections 2.5.1 and 2.5.2 do not adequately address 
Korea's arg uments with respect to the impact of the initial release and ongoing spills of liquid 
radioactive waste on contamination of sea sediment and  marine species. Korea also argues that 
section 2.5.3  and Table 3 does not address its arguments with respect to the continued release of 
water from the FDNPP that has become contaminated in the process of cooling the reactors. Korea 
requests th at the Panel insert into t hese sections declarative language that Korea has 
demonstrated certain facts  as well as additional information on the release of contaminated cooling 
water . Korea also asks the Panel to change the title of section 2.5.3.316 Japan objects to these 
requests. Japan notes that the Panel is not required to respond to every argument made by a 
party in its report so long as it makes an objective assessment. Japan also argues that Korea is 
seeking to change the meaning and  purpose of section 2.5.3  rather than requesting a review  of 
precise aspects of the report.317 The Panel notes that these sections of the report are designed to 
set forth a general understanding of the factual sit uation surrounding the release of radionuclides 
and not their impact. The parties' arguments with resp ect to the impact of radionuclides in the 
marine environment on Japanese food products  are dealt with at length in the findings . With 
respect to section 2 .5.3 its purpose is to address whether the amount released during the accident 
                                                
310 Korea's request for review of the Interim Report, paras. 7 -8. 
311 Japan's comments on Korea's request for review of the Interim Report, paras. 9 -10. 
312 Japan's request for review of the Interim Report, paras. 21 -23. 
313 Korea's comments on Japan's request for review of the Interim Report, para. 10.  
314 Japan's request for review of the Interim Report, para. 33.  
315 Korea's comments on Japan's request for review of the Interim Report, paras. 13 and 15.  
316 Korea' s request for review of the Interim Report, paras. 14 and 18.  
317 Japan's comments on Korea's request for review of the Interim Report, paras. 19 -25. WT/DS495/R  
 
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  could be confirmed by r eference to the amounts of radionuclides still in the reactor. It is not meant 
to address leaks , either those in the past or that could occur in the futur e. The Panel notes that 
paragraphs 2.59 and 2.60 already contain references to the contaminated water stored at the 
FDNPP . Therefore, the Panel did not make the reque sted changes.   
6.3  Operation of Korea's testing requirements  
6.14.   Korea argues that the Panel incorrectly concluded in paragraph 7.42 that Korea had not 
provided the results of any tests conducted on domestic prod ucts at  the production stage. Korea 
refers to the Panel to its response to question No. 95.318 Japan contends that the Panel's 
conclusions are correct.319 The Panel has reviewed Korea's response to question No. 95 and the 
accompanying table. The table contains  caesiu m testing results for the 150 most frequently -
consumed products distributed in the Korean market and notes that it includes results for both 
imported and domestic products . Nothing on the table indicates that any of the tests were 
conducted at the p roducti on stage. Moreover, there is no separation or distinguishing between the 
imported and domestic products. The only testing that both imported and domestic products are 
subject to under the same regime is point -of-sale testing.  The Panel followed -up with Kor ea in 
question No. 131. In its response to that question Korea provided an updated number of test 
results which were attached in ex hibit KOR -283. The exhibit contains a table of  "results of further 
analysis on the samples at the point -of-sale." The Panel h as found nothing on the record that 
demonstrates that testing was actually conducted at the production stage. Therefore, the Panel did 
not chang e its conclusion.   
6.15.   Korea requests that the Panel delete its conclusion in paragraph 7.45 that Korea has not 
provided documentary evide nce of an increased frequency of testing for caesium in non -Japanese 
imports. Korea argues that its response to question No. 23 from the Panel and the excerpts of its 
various food safety la ws and regulations provided in Exhibit KOR -156 demonstrate such inc reased 
frequency.320 Japan notes that the exhibit Korea provided gives a general legal basis for testing 
imported products at the border for radionuclides, but does not mention the frequency of 
testing.321 The Panel has reviewed Korea's response to question No . 23 and the accompanying 
exhibit. In its answer, Korea noted that prior to the FDNPP disaster Korea had tested other 
products from 44 countries for caesium and iodine. However, nothing in its answer refers to the 
frequency of testing. Exhibit KOR -156 cont ains an excerpt of Article 19 of the Food Sanitation Act 
of Korea which requires the Commissioner of Food and Drug Safety of Administration to order the 
necessary examination of foods befor e customs clearance. There is no reference to the frequency 
of that  testing. Therefore, the Panel maintains its conclusion that Korea has not provided 
documentary evidence of an increased frequency of testing for caesium in non -Japanese imports.  
6.16.   The Panel,  in paragraph 7.54, has referred to an affidavit from a coffee exporter placed on 
the record by Japan. Korea requests that the Panel include in that paragraph a reference to its 
objection to the use of this affi davit, as Korea argues that it cannot confirm the veracity of the 
statements therein because the names of the employee and the company have been redacted.322 
Japan objects to this request and argues that the inclusion in the report and the probative value 
assigned to the exhibit is within the discretion of the Panel.323 The Panel has added a footnote to 
paragraph 7.54 (footnote  474) noting Korea's objection and also noting that such obje ction was 
taken into accoun t when the Panel determined the weight to be given to the affidavit.  
6.17.   Korea requests that the Panel delete the last sentence of paragraph 7.55, wher e the Panel 
concludes that it cannot exclude the possibility that individual inspection authorities at various 
ports may interpret and apply Korea's measures differently than described by Korea and thus 
order additional testing at a lower limit than 0.5 Bq /kg.324 Japan objects to this request a s in its 
view the Panel's conclusions are supported by the evaluation of the evidence in the preceding 
paragraphs.325 The sentence represents the Panel's understanding of the measures and how they 
operate within the Korea n domestic regulatory structure. As K orea explained the central authority 
                                                
318 Korea's request for review of the Interim Report, para. 34.  
319 Japan's comments on Korea's request for revi ew, para. 49.  
320 Korea's request for review o f the Interim Report, paras. 35 -36. 
321 Japan's comments on Korea's request for review, paras. 58 -60. 
322 Korea's request for review of the Interim Report, para. 38.  
323 Japan's comments on Korea's request for review, para. 62.  
324 Korea's request for review of th e Interim Report, para. 39.  
325 Japan's comments on Korea's request for review, para. 63.  WT/DS495/R  
 
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  issues instructions to the individual ports which carry them out. It would be unreasonable to 
conclude that the central authorities are able to ensure complete consistency and unifor mity in 
such a situation. That is all  that this statement is meant to reflect.   
6.4  Provisional measures  
6.18.   Korea asks the Panel to alter the penultimate sentence of paragraph 7.91 to state that 
relevant information on releases from the FDNPP was "still unknown" prior to Korea's adoption of 
the 2013 measures.326 Japan notes that this is not a minor edit, but rather would change entirely 
the sense of the Panel's conclusion that there was sufficient information available to Korea at the 
time it adopted its me asures in 2013 to conduct a risk assessment.327 The Panel did not make the 
requested change.  The Panel indicated that so me of the available information w as estimate d or not 
entirely precise . This does not equate to "unknown" , especially in the context of det ermining 
whether there is sufficient scientific information to reach conclusions about the risks posed by 
Japanese foo d products.  
6.19.   Japan requests that the Panel insert  the word "products" in the third sentence of paragraph 
7.93. Japan also asks the Panel to delete the last sentence in the paragraph. Japan argues that the 
sentence could be misread to imply that a Member must use the LNT model.328 Korea disagrees 
with the addition of the word "products" as it does no t fit within the context of the sentence. Korea 
also a rgues that the Panel should not delete the final sentence as it is not arguing that a Member 
must use the LNT model, but merely notes that it is an "appropriate" way of accounting for 
uncertainty at low  doses.329 The Panel will not insert the word "products" , the sentence is referring 
to who is being protected (Koreans or Japanese) rather than what they are being protected from 
(potentially contaminated products). The Panel did not delete the last sentence  of the paragraph. 
However, it modif ied it in the hope s of preventing any misunderstanding.  
6.20.   Korea asks the Panel to insert language in paragraphs 7.105  and 7.107  to reflect the 
difficulties it alleges it faced in obtaining information from Japan.330 Japan argues that the 
language Korea seeks to insert is incorrect and misleading. Japan argues that if the Panel accepts 
Korea's request it should also reflect that Japan did  respond to Korea's requests  and to expand the 
summary of Japan's arg uments on this topic .331 The Panel notes that the focus of this paragraph is 
on Korea's obligation to seek additional information, which the Panel has concluded Korea 
complied with. Whether  Japan responded to each and every request is not particularly releva nt to 
the question at hand. For the sake of completeness the Panel will add additional text to paragraph 
7.105  that Korea requested informatio n from  Japan and a footnote to indicate that although Japan 
did respond to Korea's requests and in its view provided all relevant information, Korea did not 
consider every response from Japan to be sufficient.  The Panel has also made edits to paragraph 
7.106  to more complet ely reflect the events that were listed in Korea's Diary of Radiological Food 
Safety Activity.  
6.21.   Korea requests that the Panel edit the co nclusion  in paragraph 7.108  because in its view the 
uncertainty and insufficiency of information related to the FDNPP exceeds the inherent uncertainty 
of life and that the insufficiencies relate to science including Japan's food monitoring program, 
sampling, and measu rements of other radionuclides.332 Japan opposes the request and notes  that 
Korea's editorial request is really a request to have  the Panel change its appreciation of the 
evidence  without any evidentiary justification for the requested change.333 The Panel agr ees with 
Japan. The purpose of the sentence is to indicate that while there is indeed uncertainty about the 
possibility of futu re nuclear accidents this does not relate to the type of scientific uncertainty that 
would render information insufficient to ass ess the risks associated with the consumption of food 
                                                
326 Korea's request for review of the Interim Report, para. 43.  
327 Japan's comments on Korea's request for review of the Interi m Report, paras. 66 -68. 
328 Japan's request for review of the Interim Report, paras. 117 -188. 
329 Korea's comments on Japan's request for review of the Interim Report, para. 26.  
330 Korea's request for review of the Interim Report, paras. 69 -70. 
331 Japan's commen ts on Korea's request for review o f the Interim Report, para. 45.  
332 Korea's request for review of the Interim Report, para. 46.  
333 Japan's comments on Korea's request for review of the Interim Report, para. 71.  WT/DS495/R  
 
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  products from Japan.334 The latter can be addressed through recourse to Art icle 5.7 while the 
former cannot. The Panel has edited the sentence in an effort to prevent confusion.  
6.5  Whether Korea's measures a re more trade restrictive than required  
6.22.   Korea asks the Panel to delete "pre -export caesium and iodine testing for food products  
from 13 prefectures and fisher y products from 8 prefectures" from the column "Existing Measures" 
in Table 11. Korea argues that Japan is not challenging this measure.335 Japan notes that Table 11 
is a side -by-side comparison of the measures currently in eff ect and Japan's proposed alternative 
measure. Thus the fact that Japan is not challenging  pre-export caesium and iodine testing d oes 
not mean it is not appropriately listed as an existing measure.336 The Panel did not delete the 
measure from  the column on ex isting measures  Table 11. However, as Japan does not challenge 
pre-export caesium and iodine testing the Panel assumes that Japan  accepts that such testing will 
continue even if its proposed alternative measure applies. Therefore, the Panel add ed the same 
measure to the column on Japan's proposed alternative.   
6.23.   Japan requests that the Panel modify paragraph 7.154  to better reflect Japan's arguments 
regarding the time it takes to conduct additional testing and resulting trade restrictiveness. In 
particular, Japan requests the Panel to clarify whether  consignments will be held at the border 
while awaiting the results of additional testing , which can aff ect their merchantability. Japan refers 
the Panel to paragraph 294 of its second written submission.337 Korea has no comment on this 
request. Paragraph 294 of Japan's second written submission re fers the Panel to Japan's response 
to question No. 70. In respo nse to that question Japan refers to potential additional storage costs, 
but it also notes that the Japanese exporters could opt to have the products returned to Japan to 
attempt making sales o n the domestic market. Therefore, the Panel has modified the pa ragraph, 
but in a manner that is consistent with what Japan stated in response to question No. 70 and that 
is contained in its exhibits.  The Panel has also verified the estimate of the cost of the testing Japan 
referred to in its opening statement at the second meeting of the Panel and corrected a 
typographical error in the cost estimate in paragraph 7.154 . 
6.24.   Korea requests that the Panel correct footno te 716 to paragraph 7.171  to reflect that Korea 
has repeatedly cited to the statement of the ALARA principle in Korea's Food Code as proof that it 
has provided internal legislation or regul ations setting forth its ALOP. Korea also requests that the 
Panel delete references to the ALARA principle being used to arrive at the dose limit for all 
radionuclides from paragraph 7.171 .338 Japan oppose s the request. Japan notes that the internal 
legislation may refer to the ALARA principle, but it does not set forth Korea's ALOP for 
radionuclides as Korea asserts. Japan also notes that none of the m easures provided nor materials 
otherwise referenced sho w that Korea formulated its ALOP before this dispute settlement process 
was initiated. With respect to the dose limit, Japan notes that there is an inextricable link between 
the maximum levels for indi vidual radionuclides and the dose limit. If ALARA is ta ken into account 
for one it is necessarily taken into account for the other.339 The Panel alter ed footnote  716 to note 
that Korea has referred to the section of the Korea Food Code relating to the ALARA principle. 
However, the P anel maintains its conclusion that Korea has not provided the Panel with i nternal 
regulations or legislation setting forth its ALOP for radionuclides. With respect to the dose limit, the 
Panel did not delete the reference.  
6.25.   Japan suggests that the Panel mov e paragraph 7.177  to clarify that the Codex four steps for 
risk assessment are not the basis for its analytical approach, but rather that the approach was 
based on the arguments of the parties and the factors th at Korea c larified are important and 
relevant when it conducts a risk assessment.340 Korea makes no comment. The Panel has moved 
the paragraph. The Panel has also added language in paragraph 7.175  to clarify that its reference 
to the four steps is based on guidance from Article 5.1 to take into account the risk assessment 
                                                
334 There was consensus among the experts that u ncertainty in the source term does not prevent 
reasonably supported scientific conclusions about the potential levels of contamination in food (fishery and 
agricultural) products from Japan. See experts' responses to Panel question Nos. 12(b) and 55 to the  experts.  
335 Korea's request fo r review of the Interim Report, para. 48.  
336 Japan's comments on Korea's request for review of the Interim Report, para. 72.  
337 Japan's request for review of the Interim Report, para. 138.  
338 Korea's request for review of the Int erim Report, paras. 54 -55. 
339 Japan's comments on Korea's request for review of the Interim Report, paras. 83 -90. 
340 Japan's request for review of the Interim Report, paras. 151 -154. WT/DS495/R  
 
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  techniques of the relevant international organizations. The Panel also notes that the Codex four 
steps have been discussed by a prior panel.  
6.26.   Japan suggests that the Panel add the experts' explanation on caesium -rich microparticles  
to the end of paragraph 7.195  c) and to footnotes 770 and 771. Japan also suggests that the Panel 
reflect in a separate sentence in  paragraph  7.195  e) that every consignment of Japanese food is 
tested at the Korean border.341 For its part Korea asks the Panel to refer to Exhibi t KOR -213.6 as 
evidence  to support its assertion that caesium rich microparticles  were not found at Chernobyl.  
Korea also argues that Japan's statement that the microparticles  have not been found in food is 
incorrect. Korea argues that insoluble caesium -rich microparticles  can exist in food and water in 
the form of colloids and can be relevant both when inhaled and ingested.342 The Panel has 
reviewed Exhibit KOR -213.6. While it does note that caesium -rich microparticles  were found in 
Japan it does not speak to the fact of whether they were discovered in Chernobyl. The Panel also 
notes that the experts confirmed that because these microparticles  are insoluble that even if they 
were consumed they would survive the passage through the human digestive system and 
contribute less to the intake compared to the usual solub le caesium. The Panel add ed a reference 
to Professor Michel's statement at the Expert Meeting to that effect  in footnote 735 . The Panel did 
not add the additional sentence to paragraph 7.195(e). This  paragraph is dealing with the potential 
level of risk associated with the potential for Japanese food products to be contaminated with 
radionuclides, not with the mitigating measures that might be taken to prevent contaminated 
products from entering the m arket.  
6.27.   Korea a lso requests that the Panel include in paragraph 7.195  a summary of Korea's 
arguments about the lack of concrete barriers around the FDNPP such that  fish can swim into and 
out of the 20km exclusion  zone.343 Japan notes that inserting arguments into paragraph 7.195  
would be inappropriate as it is a  summary of the experts' responses to questions. If the Panel were 
to accede to Korea's request, Japan asks that  the Panel also include a reference to Dr Thompson's 
statement at the Expert Meeting that the risk that highly contaminated migratory fish speci es 
could be caught outside the 20km zone is negligible.344 The Panel note d that there is no 
permanent impermeable structure blocking the port and that migratory fish that have spent time 
within the 20  km zone could be caught outside the zone. The Panel will also add the experts' 
assessment of the likelihood of such fish being highly contaminated.  
6.28.   Japan makes three com ments to footnote 811 to paragraph 7.206 : (1) Japan requests that 
because the list of species does not cover all of the species for which ther e were test results for 
both caesium an d strontium, that the Panel include the term "for example" ; (2) to correct the 
reference to cherry salmon to chum salmon; and (3) to delete the reference to Japanese flying 
squid as test results for this species concer n samples taken after the establishmen t of the Panel. 
Finally, Japan also seeks modification of the penultimate sentence of paragraph 7.206 to indicate 
that test results for some species, for which there are test results for both caesium and strontium, 
reveal non -detectable levels of caesium, strontium or both.345 Korea disagrees with the deletion of 
Japanese flying squid from the footnote. In Korea's view, Japan cannot simply delete species or 
data that the Panel considered when arriving at its conclusions. Korea considers that Japan's 
insertion  into paragraph 7.206  breaks the flow of the paragraph and that if the Panel decides to 
include the language the Panel put it in a footnote.346 
6.29.   The Panel add ed the term "for example" in the footnote and correct th e reference to chum 
salmon. With respect to the flying squid, the Panel notes that in response to question No. 112, 
Japan stated that 16 samples of Japane se flying squid were tested in the Aomori prefecture 
between the second quarter of 2011 and the third quarter of 2015.347 The Panel is puzzled by 
Japan's comment that no samples of Japanese flying squid were tested prior to the establishment 
of the Panel. In  any event, the Panel finds in paragraph 7.206  that the d ata available as of 
establishment of the Panel contains test results for caesium and stront ium for species 
representative for all of the 28 fishery products , for which Japan is challenging the blanket and 
                                                
341 Japan's request for review of the Interim Report, paras. 166 -167. 
342 Korea 's comments on Japan's request  for review of the Interim Report, para. 31.  
343 Korea's request for review of the Interim Report, para. 60.  
344 Japan's comments on Korea's request for review of the Interim Report, para. 95.  
345 Japan's request for review of the I nterim Report, paras. 181 -192. 
346 Korea's comments on Japan's request for review of the Interim Report, para. 35.  
347 Revised Annex C, Sampling table for fishery & livestock products from eight Japanese prefectures, 
(Exhibit JPN -271), p. 82.  WT/DS495/R  
 
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  product -specific import bans. It is based on this d ata, assessed together with other relevant 
factors mentioned in paragraph 7.224 , in particular the knowledge about the releases of the Codex 
additional radionuclides, that the Panel makes its conclusions on the levels of contaminants in 
Japanese food products. In addition, the Panel notes that all 28 fishery products  have been tested 
for strontium at some point in time. In that regard, the Panel recalls its finding that it may use 
post-establishment data as a mea ns of confirming its conclus ions. 
6.30.   Korea argues that the method of presentation of Tables 13 -16 is misleading. In particular, 
Korea argues that the tables ignore all samples containing less than 100 Bq/kg of caesium. Korea 
argues that such measurements are relevant given Korea's ALOP.  Korea argues that the data 
should be presented concerning the number of fish products for each species in each prefecture 
that show any detectable levels of contamination. Moreover, Korea also requests that the tables 
indicate the number of samples of eac h fish species upon which they are based. Korea also asks 
that the column indicating the number of samples exceeding the benchmark level should not 
include "0" if no samples were taken at all as the "0 " could be confusing . Korea  request s the Panel 
use "No data" instead.348 Japan does not disagree specifically with Korea's requests, instead 
arguing that if the Panel were to make the changes that it also include language in paragraph 
7.223  with respect to the representativeness of the data and the consensus among the experts 
that the data is statistically valid support for the conclusion that products containing less than 100 
Bq/kg of caesium would contain additional radionuclides also belo w their tolerance levels.349 The 
Panel fails to understand the relevance of food samples that contain less than 100 Bq/kg of 
caesium for the factual question at hand, which is the potential for Japanese food products to 
contain caesium in excess of the 100 B q/kg limit . The Panel clarif ied in the text  that the "0" in the 
table does not mean that there were no radionuclides detected at all. As regards the number of 
samples tested, this point has al ready been addressed by the Panel in paras. 7.201  through 7.219 , 
which adequately reflect Korea's arguments.  
6.31.   Japan requests that the Panel further develop its reasoning in paragraph 7.224 with respect 
to the existence of domestic, product -specific distribution restrictions in Japan. Japan notes that 
the existence, in 2012, of domestic distribution restrictions in Japan for Pacific cod and Alaska 
pollock from certain prefectures was a fac tor in the Panel's finding, at paragraphs 7.250 , 7.252  
and 8.2 a), that Korea's product -specific import bans, when introd uced in 2012, wer e not more 
trade -restrictive than necessary. Japan believes that it may be helpful for the Panel to explain a 
little further the role that the existence of distribution restrictions plays in its reasoning in this 
paragraph.350 Korea find s the additional lang uage unnecessary. However, if the Panel were to 
adopt Japan's language, Korea asks that the Panel fully quote the expert statements. In particular, 
Korea requests that the Panel include more of Professor Michel's response to question No. 4 4 to 
the experts and Ms Brown's response to question No. 57 to the experts.351 The Panel modif ied the 
relevant paragraph in order to clarify that for specific fishery products  subject to import bans, the 
Panel views Japan's own distribution restrictions as a n indication that the radionuclide 
contamination levels in these products  are such that under Japan's own criteria they should not be 
consumed . The Panel also include d the quot ations from Professor Michel and Ms Brown indicated 
by Japan. The Panel also quo ted in a footnote the remaining language from Ms Brown's response. 
However, the Panel  disagrees with Korea that it should supplement the quote from Professor 
Michel with an additional explanation  provided  in response to a different question which was asked  
in a dif ferent context.   
6.32.   Japan asks the Panel to consider several modifications of paragraphs 7.234 -7.236  that 
would enhance its reasoning by providing cross referen ces to the section on Factual Aspects and 
other paragraphs of the findings where additional detail is contained. In paragraph 7.235  Japan 
suggests the Panel include more citations with references to Japan's anal ysis on average 
consumption doses and average concentration levels as well  as the various Merz plots.352 Korea for 
its part requests that the Panel delete the first sentence in paragraph 7.235  which notes that 
Korea did not address Japan's overall methodology. Korea contends that this statement is 
incorrect. Korea argues that it did address Japan's overall monitoring programme and food 
                                                
348 Korea's request  for review of the Interim Rep ort, para. 64.  
349 Japan's comments on Korea's request for review of the Interim Report, paras. 97 -99. 
350 Japan's request for review of the Interim Report, paras. 220 -224. 
351 Korea's comments on Japan's request for review of the I nterim Report, para. 39.  
352 Japan's request for review of the Interim Report, paras. 236 -245. WT/DS495/R  
 
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  sampling methodology.353 The Panel insert ed additional cross references in these p aragraphs a s 
well as additional citations. The Panel did not delete the sentence. In this sentence the Panel was 
referring to Korea's argumentation on the methodology Japan used to determine permissible 
caesium levels in food products that ensures that ove rall dietary exposure does not exceed Korea's 
tolerance level of 1 mSv/year . The Panel was not referring to Japan's monitoring programme or 
food sampling methodology. The Panel does not dispute that Korea thoroughly addressed those 
issues.  
6.33.   Japan expresses  concern that paragraphs 7.238  and 7.239  could be misread to imply a 
determination by the Panel that the ICRP and Codex dictate the characterization of the risks at 
issue that Korea or any other Member are required to accept. Japan proposes that the Panel 
modify the paragraphs to avoid any misinterp retation .354 Korea finds Japan's proposed changes 
incorrect. Korea requests its own change to clarify that Members are not r equired to make a 
scientific determination when deciding to use international standards.355 The Panel in no way 
meant to imply  that the ICRP and Codex dictate what Members must accept. Rather the Panel was 
simply pointing out that Korea had adopted as its ow n the logic of the ICRP and Codex in 
developing its own limits. The Panel alter ed the language of the paragraph to provide additional 
clarity.  Japan also requests that the Panel review its discussion of individual risk finding it not 
germane to the discuss ion and more appropriately addressed when a Member develops their 
ALOP.356 The Panel is of the view that knowing the individual risk is relevant for determining 
whether a particular mitigating measure will achieve the ALOP. Therefore, the Panel did not revis e 
the discussion.  
6.34.   Japan requests that the Panel add the word "caesium" before data in paragraph 7.242  when 
the Panel concludes that the data was sufficient to justify imposition of the product -specific bans in 
2012.357 Korea objects to this change. In Korea's view this does not matc h the reasoning in 
paragraph 7.96, which the Panel cross -references in this paragraph.358 In that paragraph, the 
Panel concludes that "there w as not insufficient scientific evidence to conduct a risk assessment." 
The Panel agrees with Korea, in this sentence the Panel was referring to the data in general and 
not just on caesium. For consistenc y the Panel change d the word "data" to "evidence".  
6.35.   Korea notes that section  7.7 does not address Korea's explanation of the differences 
between the ICRP optimization approach and the Codex use of ALARA, particularly with respect to 
the differences between using AL ARA for  radiological protection and food safety. Korea asks the 
Panel to include an additional paragraph, although it does not indicate where in the section it 
would like the paragraph to be inserted although the Panel  notes that Korea made similar 
comment s with respect to paragraph 7.171 .359 Indeed, Japan refers the Panel to its comments to 
Korea's comments on paragraph 7.171 .360 The IAEA defines radiation protection as " the protection 
of people from harmful effects of exposure to ionizing radiation, and the means for achieving 
this".361 The ICRP explains th at rather than being separate from or defined in terms of 
optimisation, ALARA is in fact simply an acronym of text used  in the definition of the optimisation 
of protection. In particular, ICRP defines the principle of optimisation as "the source related 
process to keep the likelihood of incurring exposures (where these are not certain to be received), 
the number of people exposed and the magnitude of individual doses as low as reasonably 
achievable, taking economic and social factors into account" .362 The ICRP clarified that the 
optimisation principle (of which ALARA is a part) applies in all circumstances and that it is a 
process rather than an endpoint.363 ALARA  is relevant  to the development of the dose coefficients 
and the maximum exposure limit. This limit – 1 mSv/year – is what is used by Codex to derive the 
                                                
353 Korea's comments on Japan's request for review of the Interim Report, para. 40.  
354 Japan's request for review of the Interim Report, paras. 254 and 256.  
355 Korea's  comments on Japan's request f or review of the Interim Report, para. 41.  
356 Japan's request for review of the Interim Report, para. 255.  
357 Japan's request for review of the Interim Report, para. 261.  
358 Korea's comments on Japan's request for review of the I nterim Report, para. 42.  
359 Korea's request for review of the Interim Report, para. 71 . 
360 Japan's comments on Korea's request for review of the Interim Report, para. 104.  
361 See website of the International Atomic Energy Agency (IAEA Website), IAEA Safety Gl ossary 
Terminology Used in Nuclear Safety and Radiation Protection , 2016 Revision, https://www -
ns.iaea.org/downloads/standards/glossary/iaea -safety -glossary-draft-2016.pdf  
362 ICRP's responses to Panel question No. 1.  ICRP Publication 103:  2007 Recommendations, 
(Exhibit  KOR-1), (Exhibit ICRP -3), p. 91.  
363 ICRP's resp onses to Panel question No. 1.  WT/DS495/R  
 
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  guideline levels of the individual radionuclides. Although some e xperts noted that ALARA was more 
commonly used in in the context of regulating exposure to radioactive materials in a workplace 
environment or for relating to discharges from  nuclear power plants  into the environment364, the 
Panel has only referred to the wo rk of the ICRP  and the ALARA principle  in the  context of food 
safety. The Panel has accepted that Korea uses the ALARA principle in  the food safety context and 
particularly in the development of its ALOP for radionuclides. Therefore, there is no need to in clude 
extensive arguments on or explanations of the differences between the optimization approach or 
the differing uses of ALARA fo r radiological protection and food safety.   
6.6  Non-discrimination  
6.36.   Korea requests that the Panel reflects more comprehensively Ko rea's textual interpretation 
of Article 2.3 of the SPS Agreement in paragraph 7.267  of the Report.365 Japan states that the 
Panel is not required to restate all of Korea's arguments, although, if the Panel were to  do so, 
Japan requests the Panel to equally reflect its own argument s.366 The Panel added language 
summarising Korea's arguments in footnote  934. The Panel considered that Japan's arguments are 
sufficiently reflected in the relevant section of the report. The Panel has also provided its 
evaluation of Korea's arguments.  
6.37.   Korea requests that  the Panel reflect in paragraph 7.295  that when Korea provided  Figure 7 
in its submission it did so  to demonstrate that information on the various pathways for 
contamination should also guide the regulator when assessing the risks of contamination of 
different food products, determining  the level of radiation protection  and confirming the extent of 
samp ling required for different products to achieve the ALOP.367 According to Japan, the Panel is 
not required to utilise the facts and evidence in the same  way the parties  presented them and 
there is no reason for the Panel to restate Korea's rationale behind p roviding Figure 7.368 The Pan el 
notes that Figure 7 depicts  different pathways of absorption of contaminants in the marine 
environment. The source document provided by Korea refers to Figure  7 as "Transport of 
hazardous substances and transformation products  through the food web". The relevant section of 
the document does not mention any particular approach that a regulator should take when 
assessing the risk of food contamination, nor does i t refer to a sampling design or ALOP. 
Therefore, the Panel is of the  view that the description of Figure 7 should remain limited to what 
Figure 7 actually depicts.  
6.7  Control, inspection and approval procedures  
6.38.   Japan requests that the Panel further elaborate on its reasoning in paragraph 7.396  relating 
to the standard for demonstrating that the presumption of likeness  can be used to demonstrate 
that Annex C(1)(a) is applicable . Japan understands that  the Panel has relied upon the potential 
influence that differing contamination leve ls could have on the competitive relationship between 
Japanese food products and those f rom other origins in determining that Korea's measures do not 
distinguish solely  on the basis of origin. Japan requests the Panel to clarify that the Panel's findings 
are indeed related to the inapplicability of the presumption of likeness under Annex C(1) (a), and 
not to any other provision of the SPS Agreement.369 According to Korea, the Interim Report 
sufficiently lays out the Panel's reasoning with regard to why the lik eness between imported and 
domestic products cannot be presumed  in the case at hand .370 The Panel  recalls  that its finding s 
concerning  the presumption of likeness are not based on an evaluation of the competitive 
relationship between products from Japan and Korean products . Rather the Panel's analysis 
focuse s on whether Korea pursued grounds ot her than origin when  imposing the measures in 
question. In this case, the Panel finds that Korea's concern with the potential contamination of 
food resulting from the F DNPP accident was a ground other than origin, which was a basis for the 
measures disting uishing between Japanese  and domestic products.  The Panel made changes to  the 
language in paragraph 7.399  to reflect this r ationale.  
                                                
364 Expert Meeting Transcript, para. 2.19, see also experts' r esponses to Panel question No. 10 to the 
experts.  
365 Korea's request for review of the Interim Report, para. 73.  
366 Japan's comments on Korea's request for review of the Interim Report, para. 105.  
367 Korea's request for review of the Interim Report, para. 82.  
368 Japan's comments on Kore a's request for review of the Interim Report, paras. 115 -116. 
369 Japan's request for review of the Interim Report, paras. 328 -330. 
370 Korea's comments on Japan's request for review of the Interim Report, para. 45.  WT/DS495/R  
 
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  6.8  Transparency obligations  
6.39.   Japan requests that the Panel assess in its findings whether the press release announcing 
the measure was required to include the rules of origin applicable to the covered products in order 
to comply with the obligation i n Annex B( 1).371 Korea made no comment on this request. The 
Panel has added some language in paragraph 7.463  addressing Japan's arguments on whether 
rules of or igin are required in the publication of an SPS measur e. 
6.40.   Korea requests that the Panel identify the exhibits which contain the Harmonized System of 
the World Customs Organization and the Aquatic  Animal Health  Code of the World Organization for 
Animal Health , which are referenced in paragraphs 7.481  through  7.483 .372 Japan notes that given 
the nature of these documents it is questionable whether they need to have been provided by one 
of the parties.373 These documents were not  placed on the record by either party and are thus not 
contained in Exhibits. The Panel notes t hat pursuant to Article 13.2 of the DSU it retains discretion 
to seek information from any relevant source. The Panel also notes that these documents are from 
organizations of which both Japan and Korea are members and are used as sources for WTO 
Schedules  (Harmonized System)374and international standards (Aquatic Animal Health Code)375. 
The Panel did  not rely on the contents of the Harmonized System or the Aquatic Animal Health 
Code for its findings, but rather to note that Korea's measures did not reference o r claim to be 
based on these commonly used sources for defining terms in international trade in fishery or other 
aquatic products. The Panel modified the  languag e to these paragraphs to clarify this point.  
6.41.   Korea requests the Panel to modify its findings in  paragraphs 7.473  and 7.484  where the 
Panel mentions that it could not verify the relevant content of the web -pages where Korea argues 
it posted the press releases. The Panel noted in those paragraphs that it was unable to access the 
MFDS website addresses provided by Korea. Korea argues that t he websites were only temporaril y 
unavailable and that the Panel should now be able to view them. With respect to one website 
address, Korea notes that the issue was a typographical error in the URL.376 Japan argues that 
Korea's explanation is unconvincing b ecause  it appears to be factuall y inaccurate and that Japan 
was unsuccessful in accessing the "Food Safety Portal" prior to 17 March 2017 . Moreover, Japan 
argues that it noted this problem with the website address in its comments on Korea's answer to 
question No. 114.377 However, Korea's e xplanation comes only after the interim report had already 
been issued. While the ability to currently access the webpages is important for informing traders 
today of the measures and how they apply, it is not directly relevant to the Panel's findings on 
whether Korea complied with the obligation in Annex B(1) when it adopted the measures. In its 
findings, t he Panel noted that Korea did not  provid e archived versions of the websites so that the 
Panel  could confirm what wa s posted and where at the time the me asures were adopted.  
Therefore, the relevance of this issue is limited. The Panel made  some modifications to these 
paragraphs to ensure that the basis of its finding is clear  and added a reference to Japan's 
comments on  Korea's answer to question No. 114 i n footnote  1353. 
6.42.   Japan asks the Panel to state and explain its findings with respect to whether the response 
of Korea's SPS E nquiry Point to its request of 24 June 2014 was in and of itself sufficient to comply 
with the obliga tion in Annex B(3).378 Korea did not comment on this request. The Panel add ed 
additional language in paragraph 7.516  to address Japan's request.   
                                                
371 Japan's request  for review of the Interim Report, para. 344.  
372 Korea's request for review of the Interim Report, para. 91.  
373 Japan's comments on Korea's request for review, para. 125.  
374 The HS is used as a basis for the preparation of Members' goods schedules and has bee n considered 
relevant conte xt for the interpretation of obligations under GATT 1994 Articles I and II. See Appellate Body 
Report, EC – Chicken Cuts , paras. 196 and 199, and Panel Report, EC – Chicken Cuts , para. 7.187. See also 
Panel Report, EC – IT Produc ts, para. 7.439, and Appellate Body Report, EC – Computer Equipment , para. 89. 
We also note that the HS codes are used to define product coverage in the Agreement on Agriculture, the 
Agreement on Trade in Civil Aircraft, and the Information Technology Agre ement (of which both Korea and 
Japan are members).  
375 The SPS Agreement, in Annex A(3)(b), specifically refers to the OIE as the relevant source of 
international standards for animal health and zoonoses.  
376 Korea's request for review of the Interim Report, p aras. 93 -96. 
377 Japan's comments on Korea's request for review, paras. 127 -134. 
378 Japan's request for review of the Interim Report, para. 352.  WT/DS495/R  
 
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  7  FINDINGS  
7.1  Standard of review  
7.1.  Japan has raised  claims under the SPS  Agreement. The standard of review applicable is that 
set forth in  Article  11 of the DSU, which provides, in relevant part, that:  
[A] panel should make an objective assessment of the matter before it, including an 
objective assessment of the facts of the cas e and the applicability of and conformity 
with the relevant cove red agreements.  
7.2.  The Appellate Body has explained that where a panel is reviewing an national authority's 
determination, the "objective assessment " standard in Article  11 of the DSU requires a panel to 
review whether the authorit y has provided a reasoned an d adequate explanation of how (i) the 
evidence on the record supported its factual findings; and (ii) those factual findings support the 
overall determination.379 The Appellate Body has clarifie d that this objective assessment neither 
mandates a de novo  review nor "total deference" to national authorities. So, on the one hand, the 
panel must not completely repeat the fact -finding exercise conducted by the national authority 
substituting its judge ment for that of the authority. On the other hand the panel must  not simply 
accept without further inquiry the national authorities' determination.380 Rather a panel's 
examination of the national authority's conclusions must be "in -depth" and "critical and 
searching".381 
7.3.   In particular, in SPS cases dealing with Article 5. 1 of the SPS Agreement where a panel 
reviews a Member's risk assessment, the Appellate Body explicitly cautioned that a panel must not 
substitute its own scientific judgment for that of the do mestic regulator even if the regulator were 
relying on a minorit y view of the science.382 Korea argues that this obligation extends beyond the 
review of risk assessments and reflects a broader principle regarding a panel 's mandate.383 Korea 
relies on the Appel late Body's statement in EC – Hormones that the risk to be ascer tained in a risk 
assessment includes the risk in human societies as they actually exist to support its position that 
"under the SPS Agreement, deference must be provided to the regulator ".384 Korea extends this 
concept of deference to the regulator to argue that the Panel is precluded from consider ing 
evidence not available to Korea at the time Korea made the decision to impose the measures . In 
particular, Korea argues that pursuant to Article 11  of the DSU:  
[T]he Panel must consider only the information tha t was available to the domestic 
regulator.  Consideration by the Panel of information that was not available to Korea 's 
regulator means that the Panel would be substituting its own judgment for  that of the 
domestic regulator, and with the benefit of hindsight.385  
7.4.  The principle  cited by  Korea has been acknowledged in the context of a panel reviewing a 
determination by a regulator e.g. a risk assessment386 or the imposition of a safeguard measure387 
or an anti -dumping or countervailing duty .388 However,  the Appellate Body has clarified that panels 
should not shy away from doing their own assessments of the complete facts, including scientific 
evidence, in cases involving Article 5.6 of the SPS Agreement.389 Indeed, the Appellate Body noted 
that a panel need not fear conducting a n impermissible  de novo  review, because the panel is not 
examining a scientific or legal determination made by the importing Member in its own risk 
assessment, but rather whether the importing Member could have adopted a less trade -restrict ive 
                                                
379 See Appellate Body Report, US – Cotton Yarn , para. 74; Appellate Body Report, US – Countervailing 
Duty Investiga tion on DRAMS, para. 186; see also Appellate Body Report, US – Lamb , para.  103; and 
Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada) , para. 93.  
380 Appellate Body Report, EC – Hormones , para.  117. 
381 Appellate Body Report, US – Softwood Lumber VI (Article 21.5 – Canada),  para. 93. 
382 Appellate Body Report, US/Canada – Continued Suspension, paras. 590 -591. 
383 Korea's first written submission, paras. 89 -90. 
384 Korea's opening statement at the second meeting of the Panel, para. 7 (citing Appell ate Body Report, 
EC – Hormones, para. 187).  
385 Korea's opening statement at the second meeting of the Panel, para. 13.  
386 Appellate Body Report, US/Canada – Continued Suspension.  
387 Appellate Body Report, US – Cotton Yarn.  
388 Appellate Body Report, US – Softwo od Lumber VI (Article 21.5 – Canada).  
389 Appellate Body Report, Australia – Apples , para. 354.  WT/DS495/R  
 
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  measure.390 The Appellate Body explained that claims under Article 5.6 require the panel itself to 
objectively assess the situation.391 In our view this means that the Panel should not simply defer 
to the importing Member. Similarly, an evaluation of whether arbitrary or unjustifiable 
discriminatory treatment exists , within the meaning of Article 2.3 , or whether control, inspection 
or approval procedures conform to Article 8 and Annex C is not dependa nt on a review of any 
particular scien tific judgment made by the regulator at the time of the adoption of the measure. Of 
course, such evidence would be relevant and useful, but other scientific evidence should also be 
considered.  
7.5.  The Appellate Body noted  in Australia  – Apples  that it expecte d the complainant would submit 
scientific evidence in support of its position392 and that factual elements outside a Member's risk 
assessment may be relevant in seeking  to establish a claim under Article 5.6.393 In that ve in, the 
panel in US – Animals  consider ed not only risk assessments and studies conducted by the 
respondent, but also primary source documents from the complainant, the determinations of the 
World Organi sation for Animal Health , and risk assessments conduct ed by other WTO Members.394 
Our understa nding of the obligations in Articles 2.3, 5.6 , and 8  and Annex C  leads us to conclude 
that this Panel is free to accept any evidence that will assist it in assessing the measure s in 
question for compliance with the obl igations therein.   
7.6.  We agree with the  panel in US – Animals  that a panel is not precluded from carrying out its 
assessment under Article 5.6, because at the time of the panel's establishment the respondent  had 
not yet completed its own risk analyses.395 Adopting Korea's position would allow Members to 
evade the disciplines of Article 5. 6 simply by not concluding a risk assessment. This is precisely the 
opposite of what the Appellate Body intended when it explained in Australia  – Apples  that the 
obligations  in Articles 5.1 and 5.6  are distinct.  The Panel  notes that Japan is raising a clai m not 
only about the sanitary situation when Korea adopted the measures, but also about the continued 
application of the measures. Evidence of a continuing  inconsistency is by i ts very nature 
unavailable at the time measures are adopted. Therefore, the Pan el does not see how it could 
conduct the assessment called for by the Appellate Body in Australia – Apples  and by the nature of 
Japan's claims if it were to limit  itself to exam ining only the scientific evidence that was available 
to the regulator at the t ime it made its determination.  Moreover, there is no evidence on the 
record as to how the regulator arrived at its decision or what evidence it considered.396 
7.7.  As mentioned in  paragraph  7.3 above , Korea also argues that Article 11 would preclude the 
Panel from considering any evidence that did not exist prior to the dispute , in particular the 
analysis of relevant sampling data t hat was co mpiled by Japan's experts for the purposes of 
demonstrating the efficacy of its proposed alternative measure under Article 5.6.397 We disagree. 
Prior panels and the Appellate Body have confirmed that "[e]vidence in support of a claim 
challenging me asures tha t are within a panel's terms of reference may pre -date or post -date the 
                                                
390 Appellate Body Report, Australia – Apples , para. 348.  
391 Appellate Body Report, Australia – Apples , para.  356. 
392 Appellate Body Report, Australia – Apples , para.  364. 
393 Appellate Body Report, Australia – Apples , para. 365 (referring to Appellate Body Report, Australia – 
Salmon, paras. 209 -213).  
394 Panel Report, US – Animals , paras. 7.437 – 7.539.  
395 Panel Report, US – Animals, para. 7.438.  
396 The Panel asked Korea to  point the Panel to the documents on the record that reflect the scientific 
judgment of the domestic regulator at the time of the adoption of the measures or at any point since. Korea 
provided a list of over 70 exhibits with no explanation as to how those documents reflect Korea's scientific 
judgment. See Korea's response to Panel question No. 118. Korea's response does indeed "point" the Panel to 
a large volume of documents, but its answer did not enable the Panel to evaluate Korea's position that there 
exists a scientific judgment by the regulator at the time of the adoption of the measures that the Panel must 
defer to or any judgment thereafter that the Panel should consider. Many of the exhibits contain dec larations of 
actions taken by Korean government authorities (such as the challenged measures or other product -specific 
bans which Japan does not challenge) with respect to radioactive contamination, but do not have any 
explanation as to how these actions o bjectively relate to any particular scientific e vidence. Other exhibits relate 
to bilateral communications between Japan and Korea that may seek or even transmit data on the situation in 
Japan, but they do not contain any evaluation or judgment  by the Kore an government authorities. Therefore, 
even if th e Panel were to agree with Korea's interpretation of the applicable standard of review, in this 
particular case the Panel does not have before it anything reflecting the scientific judgment of the importing 
Member.   
397 Korea's opening statement at the seco nd meeting of the Panel, para. 14; second written submission, 
para. 122.  WT/DS495/R  
 
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  establishment of the panel", therefore a panel "is not precluded from assessing a piece of evidence 
for the mere reason that it pre -dates or post -dates its establishment" .398 In this reg ard, the Panel  
notes that several  exhibits  that Japan provided399 for the purpose of supporting its analysis on the 
similarity of Japanese products to those from the rest of the world as well as its proposed 
alternative measure under Article 5.6  contain data  that pre -dates the establishment of the Panel  
which  has simply been analysed and packaged for purposes of expla ining how it supports Japan's 
claims.  
7.8.  With respect to the data from 2015 -2016 the Panel  notes that Japan is not seeking to use it 
to justify its  claims of inconsistency in relation  to the adoption  of the measures in 2011, 2012, and 
2013, but rather to support its it challenge  to the continuing inconsistency of the import bans and 
the additional te sting requirements with Korea's obligations .400 There fore, the Panel is  not of the 
view that consideration of these exhibits would per se violate our duty under  Article 11 of the DSU 
and will  accordingly accept the relevant exhibits. That being said, the Pan el must make an 
objective assessment of the matter before it and thus maintains the discretion to decide how , and 
for what purpose , it will consider the information provided. As this issue relates specifically to 
Japan's claims under Article 5. 6, the Panel  will address what evidence it will use in evaluati ng 
Japan's claim in section 7.7 below.   
7.2  Burden of proof 
7.9.  The DSU  does not include any express rule s concerning the burden of proof in panel 
proceedings. However, the Appellate Body has concluded that generally ac cepted canons of 
evidence (in civil law, common law, and, in fact, in most jurisdictions) apply in WTO dispute 
settlement, i.e. th at the burden of proof rests upon the party, whether complaining or defending, 
who asserts the affirmative of a particular cla im or defence. Thus, the Appellate Body has 
explained that:  
 [A]s a general matter, the burden of proof rests upon the complainin g Member. That 
Member must make out a prima facie  case by presenting sufficient evidence to raise a 
presumption in favour of i ts claim. If the complaining Member succeeds, the 
responding Member may then seek to rebut this presumption.401 
7.10.   Therefore, once the complaining party has made a prima facie  case, the burden of proof 
shifts to the defending party, which must counter or refute  the claimed inconsistency.402 However, 
the Appellate Body has also clarified that it is generally for each party asserting a fact t o provide 
proof thereof.403  
                                                
398 See Appellate Body Report, EC – Selected Customs Matters , para. 188. Moreover, the Appellate Body 
concluded in Canada – Aircraft , that "a panel is vested with ample and extensive di scretionary authority to 
determine when  it needs information to resolve a dispute and what information it needs". Appellate Body 
Report, Canada – Aircraft , para. 192 (emphasis original). More recently, in US – Animals , the Panel considered 
data contained i n risk assessments produced by the United States during the course of the proceedings in its 
analysis. Panel Report, US – Animals , para. 7.448.  
399 Japan specifically provided an analysis for food monitoring in   Analysis of caesium and additional 
radionuclid es in food products from Japan and the rest of the world, (Exhibit JPN -11) and Japan's scientific 
response to Korea's arguments in its first written submission, (Exhibit JPN -148). Japan further supplemented 
that data in  Japan's Ministry of Agriculture, Fo restry and Fisheries, "Inspection Results for Radioactive 
Strontium in Fishery Products" (April 2011 -December 2016) (English translation) (This is an  updated version of 
Exhibit  JPN-127) Japanese original avai lable at: http://www.jfa.maff.go.jp/j/housyanou/ pdf/strontium_7.pdf, 
(Exhibit JPN -238); Tokyo Electric Power Company, "Testing results of fish products (sampled within 20km 
radius of F1NPS) in which strontium was detected by TEPCO" (April 2012 -December 201 6) (This is an updated 
version of Exhibit JPN -129), (Exhibit JPN -239); Japan's Ministry of Agriculture, Forestry and Fisheries, 
"Inspection Results for Radioactive Strontium in Fishery Products" (April 2011 -December 2016)(This is an  
updated version of Exhi bit JPN-238), (Exhibit JPN -251),  and Tokyo Elec tric Power Company, "Testing results of 
fish products (sampled within 20km radius of F1NPS) in which strontium was detected by TEPCO"(April 2012 -
December 2016) (This is an updated version of Exhibit JPN -239),  (Exhibit JPN -252).  
400 Japan's response to Panel question No. 115.  
401 Appellate Body Report, Canada – Dairy (Article  21.5 New Zealand and US II) , para.  66; see also 
Appellate Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323 at 335-337. 
402 Appellate Body Report, EC – Hormones , para.  98. 
403 Appellate Body Report, US – Wool Shirts and Blouses , p. 14.  WT/DS495/R  
 
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  7.11.   It is important to remember that "a prima facie  case is one which, in the absence of 
effective refu tation by the defending party, requires a panel, as a matter of law, to rule in favour 
of the complaining party presenting the prima facie  case."404 The Appellate Body also has clarified 
that in the context of WTO dispute settlement, "[a] prima facie  case mu st be based on 'evidence 
and legal argument' put forward by the complaining party in relation to each of the elements of 
the claim . A complaining party may not simply submit evidence and expect the panel to divine 
from it a claim of WTO -inconsistency. Nor may a complaining party simply allege facts without 
relating them to its legal arguments. "405 
7.12.   Therefore, as the complaining party, J apan bears the burden of demonstrating that Korea's 
measures at issue are inconsistent with the SPS Agreement. However, Korea bears the burden of 
proving the defences it invokes under the SPS Agreement or any facts that it asserts to support its 
arguments.   
7.13.   Korea argues that the panel cannot use its investigative authority under Article 13 of the 
DSU or 11.2 of the SPS Agreement "to rule in favour of a complaining party which has not 
established a prima facie case of inconsistency based on specific legal cl aims asserted by it. "406 
Precisely how much and precisely what kind of evidence will be required to establish a prima facie  
case necessarily varies from measure to measure, provision to provision, and case to case.407 
Therefore, the Panel will address argument ation that Japan has failed to make a prima facie  case 
with respect to a claim , in the context of its analysis of that claim.  
7.3  Order of analysis  
7.14.   Japan has made claims under Articles 2.3, 5.6, 7, and 8, as well as Annexes B(1), B(3) and 
C(1)(a), (c), (e), and (g) of the SPS Agreement. These claims are with respect to multiple 
measures imposed by Korea that Japan alleges have the ef fect of prohibiting  exports of food from 
Japan to Korea . 
7.15.   The Panel must decide in what order it will examine Japan's claims . In reaching its decision, 
the Panel is guided by the reasoning of the panel in India – Autos,  which explained that it is 
important to consider first if a particular order is compelled by principles of valid interpretative 
methodology that, if not followe d, might constitute an error of law.408 In considering the order 
selected for examination of the claims, a panel should be aware that t he order of analysis could 
have an impact on the potential to apply judicial economy.409 
7.16.   In the Panel's view, it  is compelled  by principles of valid interpretative methodology to first 
address the threshold question of whether the SPS Agreement is applicable  to Korea's measures 
or, in other words, whether Korea's measures are SPS measures. Before turning to the substantive 
claim s, the Panel will address the factual dispute between the parties as to the content of the 
measures. Thereafter, the Panel will turn to Japan's substantive claims in respect of those 
measures themselves.  
7.17.   It is well established that the provisions of Articl e 5 are a more specific expression of the 
provisions in Article 2 and panels typically address obligations under Article 5 first.410 Although, 
there is no specific textual link between Article 5.6 and Article 2.3, the Panel does see some 
overlap in the factu al questions addressed. Therefore, the Panel will analy se Japan's claims under 
Article 5.6, then Article 2.3 before turning to Articl e 8 and Annex C where Japan makes claims only 
with respect to the additional testing requirements. Thereafter, the Panel wi ll move to Japan's 
claims with respect to Korea's adherence to its transparency obligations under Article 7 and Annex 
                                                
404 Appellate Body Report, EC – Hormones, para. 104. 
405 Appellate Body Report, US – Gambling , para.  140. 
406 Korea's first written submissio n, para. 94 (citing Appellate Body Report, Japan – Agricultura l Products 
II, para. 129).  
407 Appellate Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, 323 at 335.  
408 Panel Report, India – Autos , para. 7.154 . 
409 Panel Report, India – Autos , para. 7.161 . 
410 Panel Report, US – Animals , para. 7.264. See Appellat e Body Report, EC – Hormones , para. 180 and 
Appellate Body Reports, US/Canada – Continued Suspension , para. 674. See also Appellate Body Report, 
Australia – Salmon , para. 138; Panel Report, Australia – Salmon (Article 21.5 – Canada) , paras. 7.85 and 
7.161;  and Panel Report s, EC – Approval and Marketing of Biotech Products , para. 7.3399; Panel Report, US – 
Poultry (China) , para.157.  WT/DS495/R  
 
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  B. The Panel no tes that Korea argues that the provisional nature of its measures is critical to the 
Panel's analysis of Japan's claims. In  particular, Korea argues that the Panel's analysis of all of 
Japan's claims must be done in light of the fact that Korea's measures were adopted consistent 
with Article 5.7.411 Therefore, the Panel will address the question of the relevance of Article 5.7 t o 
this dispute prior to moving on to Japan's substantive claims.  
7.18.   Thus, the order of analysis will be: Article 1.1 and Annex A(1), th e operation of Korea's 
testing requirements , Article 5.7, Article 5.6, Article 2.3, Article 8 and Annex C, and Article 7 an d 
Annex B.  
7.4  Whether Korea's measures are SPS measures  
7.19.   Article 11 of the DSU stipulates that a panel should make an objective assessmen t of the 
matter before it, which includes an objective assessment of the applicability of the relevant 
covered agreements. Accordingly, the Panel  turns first to determine whether the challenged 
measures are subject to the disciplines of the SPS Agreement.  
7.20.   Article  1 of the SPS  Agreement sets out the scope of application of the Agreement as 
follows:  
1. This Agreement applies to all sanitary and phytosanitary measures which may, 
directly or indirectly, affect international trade. Such measures shall be develop ed and 
applied in accordance with the provisions of this Agreement.  
2. For the purposes of this Agreement, the definitions provided in Annex  A shall 
apply.  
7.21.   Annex  A of the SPS  Agreement  defines SPS  measures in relevant part as follows:  
1. Sanitary or phyto sanitary measure – Any measure applied:   
(b) to protect human or animal life or health within the territory of the Member 
from risks arising from additives, contaminants, toxins or disease -causing organisms 
in foods, beverages or feedstuffs;  
... 
Sanitary or phytosanitary measures include all relevant laws, decrees, regulations, 
requirements and procedures including, inter alia, end product criteria; processes and 
production methods; testing, inspection, certification and approval procedures; 
quarantine tre atments including relevant requirements associated with the transport 
of animals or plants, or with the materials necessary for their survival during 
transport; provisions on relevant statistical methods, sampling procedures and 
methods of risk assessment;  and packaging and labelling requirements directly related 
to food safety.  
7.22.   Thus, there are two conditions for the application of the SPS  Agreement. First, the measure 
must be an SPS  measure as defined in Annex  A and, second, accor ding to Articl e 1.1 of the  
SPS Agreement, the measure must have the potential to affect international trade, directly or 
indirectly.412  
7.23.   To determine whether the obligations in the SPS Agreement are applicable to Korea's 
measures, the Panel must determine wh ether they are SPS measure s within the meaning of Annex 
A(1) of the SPS Agreement and whether the measures directly or indirectly affect international 
trade.  
                                                
411 Korea's opening statement at the first meeting of the Panel, para. 42 (citing European Union's third -
party submission, paras.  44 and 84). See also Korea's response to Panel question No. 105.  
412 Panel Reports, EC – Hormones  (Canada) , para.  8.39; EC – Hormones  (US), para.  8.36. See also 
Panel Report s, EC – Appro val and Marketing of Biotech Products , para.  7.2554.  WT/DS495/R  
 
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  7.24.   To recall, the measures in this dispute can be summarized as follows: import bans on 
various fishery products from particula r regions of Japan and additional testing requirements on all 
Japanese products.  
7.4.1   The objective(s) of the measures  
7.25.   The Appellate Body explained in Australia – Apples that Annex  A(1) establishes a required 
link between the measure a nd the protected interest.  In that sense, the Appellate Body noted that 
the word '"applied'" points to the application of the measure and, thus, suggests that the 
relationship of the measure and one of the objectives listed in Annex  A(1) must be manifest i n the 
measure itself or ot herwise evident from the circumstances related to the application of the 
measure.413 Thus, a determination of whether a measure is "applied ... to protect" in the sense of 
one of the subparagraphs in Annex  A(1) must be based not onl y on the objectives of the  measure 
as expressed by the responding party, but also on the text and structure of the relevant measure, 
its surrounding regulatory context, and the way in which it is designed and applied. Scrutiny of 
such circumstances "must r eveal a clear and objectiv e relationship" between that measure and the 
specific purposes enumerated in the relevant subparagraph.414 If through such an analysis the 
objective purpose of the measures is seen to fall within one of the four subparagraphs in Ann ex 
A(1), then the measures  are within the jurisdiction of the SPS Agreement.  
7.26.   Japan alleges415 and Korea does not dispute416 that Korea's measures are applied to protect 
human health from the risks arising from the presence of contaminants – the identified 
radionuclides - in food produ cts.417 We also note that the measures contain references to specific 
Korean safety standards and practices, which the Panel understands relate to Korea's appropriate 
level of protection ( ALOP) for radioactive contamination of foods . For example, the press r elease 
announcing the 1 May 2011 certification requirements contains detailed references to the results of 
testing in Japan and whether they exceed or are within Korea's standards. The press release also 
refers to Korea conducting  a safety evaluation of it s existing radiation management standards.418 
The press release announcing the 2013 additional testing requirements as well as the lowering of 
Korea's maximum caesium level from 370 Bq/kg to 100 Bq/kg notes that one of the goals of the 
measure is to ensure " the same level of radioactivity safety applied to both local foods and 
Japanese foods ".419 The measure was also accompanied by a question and answer document that 
provides information on the risk, the monitoring mechanisms in Korea,  test results, and the Cod ex 
guideline levels.420 Similarly the import bans refer to the measures being taken since the outbreak 
of the nuclear crisis and also to precision testing of Japanese and domestic fishery products.421 
7.27.   In this dispute, the stated inten t of the measures, the rel ationship of those measures to 
Korea's ALOP for radionuclides, and the timing of the measures all indicate that they were adopted 
for the purpose set forth in Annex A(1)(b). Therefore, the Panel finds, that Korea's measures are 
SPS measures within the mean ing of Annex A(1)(b). We now turn to whether the measures affect 
                                                
413 Appellate Body R eport, Australia – Apples , para.  172. 
414 Appellate Body Report, Australia – Apples , para.  173. 
415 Japan's first written submission, paras. 146 -148. 
416 Korea's response to Panel question No. 29.  
417 Although Korea confirms that its measures were adopted for the purpose set forth in Annex A(1)(b) 
it attempts to undercut Japan's argument that Korea's measures are 'protectionist' by noting Japan itself 
asserts that the measures are app lied to protect human health from consumption of con taminated food 
products (see  Korea's first written submission, para. 200). Korea correctly points out what might be seen as a 
tension between the arguments necessary to establish the existence of an SPS m easure based on the intent of 
the imposing Member and those necessary to support a  claim of arbitrary or unjustifiab le discrimination under 
Article  2.3. However, the two concepts must not be conflated. Otherwise, we would enter a vicious cycle 
whereby a cl aim under Article 2.3 would be seen as an admission that the SPS Agreement is inap plicable and 
then negate the ability to even raise the claim in the first place. Furthermore, there is no in dication in the text 
of the SPS  Agreement that measures falling wi thin Annex (A)(1)(b) are immune from challenges under Article 
2.3. 
418 KFDA 14 April  2011 Press Release, (Exhibit JPN -55.b (revised)), (Exhibit KOR -72 (revised)).  
419 PMO Blanket Import Ban and Additional Testing Requirements Press Release, (Exhibit JPN -3.b). 
420 Korea's OGPC, MFDS, MOF, NSSC, "Q&A on Radioactivity Safety Management of Fisher y Products 
Imported from Japan" (September 2013), (English translation), (Exhibit JPN -4.b). 
421 Product -Specific ban on Cod from Miyagi and Iwate, (Exhibit JPN -76.b); Product -Specific ban on 
35 Fishery Products from Fukushima , (26 June 2012), (Exhibit JPN -77.b); Product -Specific ban on Cod from 
Aomori , (Exhibit JPN -78.b); Product -Specific ban on Cod from Ibaraki , (Exhibit JPN -79.b).  WT/DS495/R  
 
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  international trade, such that they would fall within the scop e of the obligations in the 
SPS Agreement.  
7.4.2   Whether the measures directly or indirectly affect internat ional trade  
7.28.   Even if a meas ure falls within the scope of Annex  A(1), this on its own is not sufficient to 
bring it within the disciplines of the SPS  Agreement. According to Article  1.1 of that Agreement, 
the measure must also be one that "may, directly or i ndirectly, affect internat ional trade".  
7.29.   Japan asserts that Korea's measures affect international trad e within the meaning of 
Article  1.1.422 Korea does not contest this assertion.  
7.30.   We recall that the panel in EC – Hormones concluded that it could not be cont ested that an 
import ban a ffects international trade.423Furthermore, testing requirements or other administrative 
procedures that can delay or deny entry of products into a Member likewise affect international 
trade.424  
7.31.   Therefore, the Panel  conclude s that Kor ea's measures directly aff ect international trade.  
7.4.3   Conclusion  
7.32.   The Panel finds that Korea's import bans and additional testing requirements are applied to 
protect human health from the risks arising from the presence of contaminants in foods. These 
measures  directly affect internati onal trade. Therefore, the measures are SPS measures within the 
meaning of Article 1 of the SPS Agreement.  
7.33.   Nevertheless, it is important to recall that the mere  fact that a measure is an 
"SPS measure" within the meaning of the def inition set forth in Annex  A(1) "does not mean that it 
is, ipso facto, subject to every provision of the SPS Agreement  which applies to 
'SPS measures '."425 As the panel in US – Poultry (China)  explained, "a determination of which 
particular provisions are applicable to a given measur e, must be done on a case -by-case basis".426 
In particular, Korea argues that certain provisions of the SPS Agreement are not applicable to its 
measures. The Panel wi ll address these applicability issues as it addresses Japan's claims. 
However, before analys ing Korea's measures for consistency with the provisions of the SPS 
Agreement raised by Japan, the Panel will first determine how the measures operate.  
7.5  Operation of  Korea's testing requirements  
7.34.   Korea requires testing for caesium and iodine of randomly sele cted samples427 from all 
consignments originating from Japan . Additionally, Korea imposed testing requirements  for the 
additional Codex radionuclides for agricultural  products, processed foods and food additives in May 
2011.428 According to these requirements , detection of iodine and caesium in Japanese a gricultural 
products/processed food /food additives  requires the submission of a testing certificate for the 
additional  Codex radionuclides.429 These requirements were extended to Japanese fishery and 
livestock pr oducts through the measures announced in 2013.430 Korea 's testing requirements 
comprise  (i) pre -market testing requirements (pre-export from Japan, at the border, and 
domestically) and (ii) point -of-sale testing requirements.  
                                                
422 Japan's first written submission, para. 150 (citing Panel Report, India – Agricultural Products , 
para. 7.157).  
423 Panel Report,  EC – Hormones , para.  8.23. 
424 Panel Report s, EC – Approval and Marketing of Biotech Products . para. 7.435. See also Appellate 
Body Report, Australia – Apples , para. 440.  
425 Panel Report EC – Approval and Marketing of Biotech Products , para.  7.1337.  
426 Panel Report, US – Poultry (China) , para.  7.139.  
427 When selecting samples to ensure that they are representative of the entire consignme nt Korean 
authorities follow the sampling methodology set forth in Article 8 of the Korea Food Code. See Sampling and 
Treatmen t of Samples, Korea Food Code, (Exhibit KOR -161).  
428 See section 2.7.3 above.  
429 KFDA 14 April 2011 Press Release, (Exhibit JPN -55.b(revised)), (Exhibit KOR -72 (revised)).  
430 PMO Blanket Import Ban and Additional T esting Requirements Press Release, (Exhibit JPN -3.b).   WT/DS495/R  
 
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  7.35.   In their first written submissio ns the parties presented divergent views on how the 
measures operate – in particular with respect to  (i) the levels of cae sium and iodine  required to 
trigger the additional testing ; (ii) what additional radionuclides would be tested for;  and (iii) where 
the additional testing had to take place. The parties also disagreed on the similarity, or not, of  the 
testing carried out o n Japanese products and the procedures applied to other imports and Korean 
domestic products.  
7.36.   Prior to the first meeting the Panel se nt the parties advance questions that it expected them 
to address during the first meeting  with the Panel . With respect to  the challenged measures, the 
Panel asked the parties to provide answer s to the following and to specify in their answer s the 
legal ba sis (i.e., a citation to a particular notice, press release, or statutory provision):  
a. When must the testing take place? Can it take place prior to shipment?  
b. Where must the testing take place?  
i. If the products have already been shipped can the testing take place in Korea?  
ii.  Korea: What would be the process required for Japan to authorise a facility in Korea 
to perform this testing?  
c. What level of c aesium detection would trigger the requirement for additional testing?  
i. Is this level the same for Japanese, domest ic, and other imported products?  
d. If caesium and additional radionuclides are detected what level would trigger a decision 
to refuse entry of the shipment?  
e. How long does the testing take? Does Korea provide for expedited procedures due to the 
perishable nat ure of some products?431 
7.37.   In their opening statements the parties attempted to address some of these issues. 
However, there continued to remain points of disagreement as well as a lack of clarity.  
7.38.   Following the first meeting  with the Panel , the Panel  present ed the parties with its  
understanding of how the testing requirements Korea imposes (pre -market and point -of-sale) 
operate with respect to products from Japan, other sources , and Korea in an attachment ( entitled 
Annex B) to the questions submitted to the parties. Both parties pr ovided comments on the table 
in their answers . Korea confirmed the content of Annex B in its second written submission.  
7.39.   Because the Panel was unable to derive a  single, coherent explanation  of how the  measures 
operate  from the parti es' responses,  the Pane l sees the need to explain its understanding of how 
the additional testing requirements operate based on the argumentation and evidence presented. 
It is on this basis that the Panel will make any subsequent findings on the consistenc y of the 
measures with the provisions of the SPS Agreement that Japan has raised.  The measures require 
testing at various points in time between production and sale. We will address the regulatory 
regime in place at each stage.  
7.5.1   Pre-market testing  
7.40.   Pre-marke t testing takes place b efore goods enter the Korean market. This can take place 
either prior to export from the country of origin, at the border, or with respect to domestic goods it 
could take place at a factory, farm, or distribution centre.  
7.41.   For domesti c products, Korea first  explained  that these are only subject to point -of-sale 
caesium and iodine testing on randomly selected final products.432 Korea later modified this 
information to state that since 2014 it has carried out caesium and iodine testing on randomly 
selected agricultural and fishery  products at the pre -market stage (i.e. at the stage of 
                                                
431 Panel's questions to the parties in advance of the first meeting of the Panel.  
432 Korea's response to Panel question No. 5.  WT/DS495/R  
 
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  production).433 Korea states that it tests for the most frequently consumed products in Korea. The 
2014 Guidelines indicate that the food items to be analysed a t the production stage are grain (rice, 
barley, buckwheat, corn, etc.), nut seeds (chestnuts, walnut, ginkgo, pi ne nut, etc.), fruits (apple, 
pear, tangerine, peach, jujube, plums, berries, etc.), crops cultivated outdoors such as mushroom, 
food items of w hich cultivation period till harvest is longer than three  months, etc. For fishery 
products the items with the l argest production volume (more than 500 tons/year) and priority 
control items shall be tested as part of a detailed action plan (to be submitted  to MFDS by Jan uary 
2014). These guidelines also include an attachment with the list of 28 most harvested fisher y 
products.434  
7.42.   Korea further  argues that it conducts testing at the production stage "in the same manner 
as radioactivity testing is conducted fo r imported foods both at the border and at the point -of-
sale."435 In response to the Panel's request for clarifica tion on how it conducts pre -market testing 
on domestic products, Korea cited its response to Panel question No. 5, in which Korea indicates 
that the relevant caesium level is 100 Bq/kg.436 This would imply that, as in the case of third -
country products teste d at the Korean border, pre -market testing on domestic products is meant 
to verify compliance with Korea's caesium tolerance level, rather than to trigger the additional 
testing. Moreover, Korea has not provided  any evidence of tests conducted at the produ ction stage 
that would allow verification of whether and to what extent such a measure is being implemented. 
Based on all of the foregoing, the Panel  conclude s that Korea has failed to demonstrate that it 
requires conducting additional testing on domestic products at pre -market stage.  
7.43.   The parties agree that pre -export testing in the country of origin is required only for 
Japanese products and does  not apply to food products from other countries.437 Pre-export testing 
for caesium and iodine is required  for Japanese non-fishery food products  from thirteen 
prefectures .438 For Japanese fisher y products , the list evolved over time beginning with  thirteen  
prefectures  in 2011439, adding and deleting prefectures in June and October 2012, coming to a 
final list of 16 prefectures.440 It is important to note, that 8 of the 16 prefectures covered by the 
pre-export testing requirements are also subject to the blanket im port ban on all fishery products , 
meaning that the testing requirements currently  apply to the 8 prefecture s not subject to a ban .441 
Products from the specified prefectures must be accompanied by a certificate of caesium and 
iodine testing upon arrival in K orea. Products from other prefectures must be accompanied by a 
certificate of origin and will be subject to  caesium and iodine testing at the border.  If a certain 
level of caesium or iodine is detected during either pre -export or at -the-border  testing, "an 
additional inspection certificate for strontium and plutonium etc. shall be requested ."442  
7.44.   Imports from all  countries can be subjected to a t-the-border testing. However, the 
frequency of the testing differs according to the origin of the consignment. Korea 's measures 
require at -the-border caesium  and iodine  testing for randomly selected samples from every  
consignment from Japan whereas imports from other countries are subjected to  testing  on 
                                                
433 Korea's response to Panel question No. 109. See Article 2.C.2 of the sect ion on "Safety Management 
of Fishery Products" in the 2014 Guideli nes for Food Safety Management (2014 Guidelines for Food Safety 
Management), (Exhibit KOR -158); Article 2.A of Section 2, "Safety Management of Radioactivity in Food" in the 
2015 Guidelines for Food Safety Management, (2015 Guidelines for Food S afety Manag ement), 
(Exhibit  KOR-281); Article 2.A of Section 2, "Safety Management of Radioactivity in Food" in the 2016 
Guidelines for Food Safety Management, (2016 Guidelines for Food Safety Manageme nt), (Exhibit KOR -159).  
434 2014 Guidelines for Food Safety Manageme nt, (Exhibit KOR -158) Moreover, the 2015 Guidelines for 
Food Safety Management (Exh ibit KOR -281) state that at the production stage, "highly consumed items" and 
items of "priority control" a re to be selected for testing.  
435 Korea's response to Panel question No. 109.  
436 Korea's response to Panel question No. 109, referring to Korea's response to Panel question No. 5 
and Annex B.  
437 Japan's response to Panel question No. 17.  
438 KFDA 2011 Changed M easure Instruction, (Exhibit KOR -40.b). The 13 prefectures are Miyagi, 
Fukushima, Gunma, Tochigi, Ibaraki, Chiba, Saitama, Kanagawa, Shizuoka, Nagano, Tokyo, Yamagata, Niigata.  
439 KFDA 14 April 2011 Press Release, (Exhibit JPN -55.b (revised)), (Exhibit KOR -72 (revised)).  
440 Korea Ministry of Food, Agriculture, Fores try and Fisheries, "Notification of adjusted areas subject to 
radioactive material inspection certificate requirements for Japanese fishery products" (26 September 2012) 
(Redacted), Translation err ors such as "Japan's ocean", "territorial waters" in p. 2 w ere correct ed, 
(Exhibit  KOR-76 (revised)).  
441 See section 2.7.1 above.  
442 KFDA 2011 Instruction on new certification requirements for Japanese food, ( Exhibit KOR -40.b).  WT/DS495/R  
 
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  samples from randomly selected consignments .443 Moreover, according  to Japan, if a consignment 
consists of more than one food product or the same product from different origi ns within Japan, 
the different parts of the consignment are tested separately.444 KFDA 's instructions to Food Import 
Division refer to the radiation in spections being conducted for every import line.445 This support s 
the conclusion that testing must be done for each product from each origin in a consignment.  
7.45.   Imports from countries other than Japan are subject to random testing for caesium or iodine 
at-the-border. At the second meeting  with the Panel , Korea averred that it  applies varying  
frequenc ies of testing by commodity and exporting country . For example  Korea states that it 
subjects  certain products (such as dried fruits and mushrooms) from more than 4 0 countries  to 
testing  at the border on a random basis, and blueber ry products from certain manufacturers from 
Ukraine, France, Denmark and Sweden must be tested for every consignment at the border.446 
However, Korea did not present any documentary evidence  to the Panel where such frequencies 
were defined in regulations or administrative guidance to import inspection authorities.447 As a 
factual matter, t he Panel notes that regardless of the frequency  or the results of at -the-border 
testing for imports of othe r origins they are not subject to  testing  for the additional Codex 
radionuclides . Imports from other origins are simply refused entry if they are found to contain 
caesium or iodine exceeding 100 Bq/kg. If the  levels are less than 100 Bq/kg they are permitt ed to 
be placed on  the Korean market, although they may be randomly subjected to point -of-sale testing 
later (see section 7.5.2 below).  
7.46.   Japan argues that the Korean measures require testing  of all food products from Japan for 
caesium  and iodine  at the border regardless of whether they had already undergone pre -export 
testing.448 Korea initially accepted this assertion .449 However , during the second meeting and in its 
answers to the Panel's questions after that meetin g, Korea  stated that it only tests for caesium 
again at the border if the pre -export caesium certification f rom Japan states that the product 
contains less than 1 Bq/kg of caesium450, which , if confirmed, would mean  that consignment would 
not be subject to t he additional testing requirements.451 According to Korea, for food products with 
pre-export caesium certifica tes indicating that the products contain more than 1 Bq/kg of caesium , 
Japanese exporters are required to submit  a test certificate for additional r adionuclides, but 
caesium and iodine testing is not conducted again at the border.452 Korea point s to the internal 
administrative instructions for the 2011 testing requirements , in particular the language that "[i]n 
the event where iodine or c aesium is detec ted at the import stage, an additional inspection 
certificate for strontium, plutonium, etc. sh all be requested" .453 It is not  clear to the Panel  that this 
language means that detection of caesium or iodine "at the import stage" refers to pre -export 
testing rather than testing at the border. It is also not clear how such language relates to whether 
the caesium and iodine testing will be conducted at the border as opposed to the request for 
testing certificates for other radionuclides. Moreover, there is no in dication whether th e testing  for 
additional radionuclides  has to be done at the border  or could  be done in Japan prior to export.  
                                                
443 Korea's response to Panel question No. 109.  
444 Japan's second written submission, para. 30.  
445 See KFDA 2011 Instruction on new certification requirements for Japanese food, (Exhibit KOR -40.b).  
446 Korea's comment on Japan's response to Panel question No. 136; Ministry of Food and Drug Safety, 
"Food Safety Information Portal", (Exhibit KOR -282).  
447 Korea's comment on Japan's response to Panel question No. 136; Korea refers to its Ministry of Food 
and Drug Safety, "Food Safety I nformation Portal" , (Exhibit KOR -282), but does not provide any regulation or 
administrative guidance where such frequency is defined. Korea also refers to its  response to Panel question 
No. 23 and Relevant Laws or Regulations in force prior to the FDNPP a ccident, including  Article 7 of the 
Standards and Specifications concerning Foods or Food Additives, Article 19 of the Import Declaration, and 
Korea Food Code Public Announcement by Minister of Food and Drug Safety, (Exhibit KOR -156). The excerpts 
from the se documents set f orth the general legal basis for Korean government officials to engage in food 
inspections without any reference to the frequency of those inspections or to specific countries.  
448 Japan's response to Panel question No. 17.  
449 Korea's respon se to Panel questi on No. 129.  
450 Korea's response to Panel question No. 129.  
451 Korea's response to Panel question No. 17.  
452 Korea's response to Panel question No. 129.  
453 KFDA 2011 Instruction on new certification requirements for Japanese food, (Exhibit KOR -40.b).  WT/DS495/R  
 
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  7.47.   Therefore, the Panel concludes that pre-export testing  for caesium and iodine  is required for 
Japanese food products  from 13 p refectures454 and Japanese fisheries products from 8 
prefectures .455 The measures also require a t-the-border caesium and iodine testing for all 
Japanese food products  from any prefecture . Whether Korea opts to conduct such testing on each 
and every consignment  or only those with a pre -export certificate indicating a level of less than 1 
Bq/kg is not relevant to the present dispute as Japan does not challenge this aspect of the 
measure.  
7.5.2   Point -of-sale testing  
7.48.   Products that are already in the market are randomly selected for caesium and iodine 
testing and then referred for additional testing if  the level of contamination is greater than the 
specified amount. This testing is referred to as point -of-sale testing. Japan initially argued that 
Korean products are not s ubject to any testing for radionuclides.456 However, Korea presented 
evidence in the form of the  Korea Food Code and the  annual Guidelines for Food Safety 
Management from  2014-2016457, which require point -of-sale caesium testing, focusing on the 150 
most consu med food products distributed in the Korean market (both imported and domestic).458 
The Korea Food Code does not mention point -of-sale additional testing in particular, but states 
that "[i]n case of leakage accident of radioactive materials…[i]f radioactive iodine or cesium is 
detected, the contamination of  other radionuclides…such as plut onium, strontium, etc. may be 
determined".459 The 2014 Guidelines provide a testing and surveillance  plan for frequently 
consumed agricultural and fishery products both at the  production and point-of-sale stage s. 
According to these guidelines, the radionuclides to be analysed as part of this testing are caesium 
and iodine  – without any mention of testing for the  other radionuclides .460 However, according to a 
Korean MFDS administ rative instruction  distributed inter nally to its local offices,  "[w]hen 
radioactivity is detected in any laboratories, it is required to send the concerned samples...for 
further analysis of other radionuclides (Sr, Pu, etc)".461 The 2015 Guidelines provide a n inspection 
plan for  iodine and cae sium in the 150 most frequently consumed food items at the harvest and 
distribution stages  (see paragraph 7.41 above ). These guidelines note tha t "[w]hen radioactivity 
has been detected from each inspection agency … specimen should be sent to National Institute of 
Food and Drug Safety Evaluation (Food Contaminants Division) to test for additional radionuclides 
(Sr, Pu, etc.)".462 The 2016 Guidelines only differ from the earlier  ones with respect to the break -
up of domestic and imported food items in the  150 food items to be inspected  (80 domestic and 70 
imported food items) . With regard to additional testing, t hese guideline s state that the 
radionuclides to be analysed as part o f the inspection program me are iodine and caesium – if trace 
amounts of these radionuclides are detected further inspection is required for strontium and 
plutonium.463  
7.49.   Korea also explained to the Panel that since 2014, 251 samples that were the subject of 
point-of-sale testing have been referred for additional testing because caesium or iodine had been 
                                                
454 KFDA 201 1 Instruction on new certification requirements for Japanese f ood, (Exhibit KOR -40.b). The 
13 prefectures are: Miyagi, Fukushima, Gunma, Tochigi, Ibaraki, Chiba, Saitama, Kanagawa, Shizuoka, 
Nagano, Tokyo, Yamagata, Niigata.  
455 FAJ Monitoring Report , (Exhib it JPN -43), p. 108. The eight prefectures are: Hokkaido, Tokyo, 
Kanagawa, Aichi, Mie, Ehime, Kumamoto, Kagoshima.  
456 Japan's response to Panel question No. 17.c.ii.  
457 2015 Guidelines for Food Safety Management, (Exhibit KOR -281); Korea Food Code (2012), 
(Exhibit KOR-123), p. 6.  
458 Korea's responses to Panel question Nos. 109 and 121.  
459 Korea Food Code (2012), (Exhibit KOR -123), p. 6.  
460  2014 Guidelines for Food Safety Management, (Exhibit KOR -158).  
461 Ministry of Food and Drug Saf ety, "Letter re: Development o f 2014 Monitoring Plan for Radioactivity 
in Food Distributed in the Market" January 17, 2014, (Exhibit KOR -221), p. 4.  
462 2015 Guidelines for Food Safety Management, (Exhibit KOR -281), pp. 5 -6, 9, 11 -12. The 100 
domestic produc ts include 29 agricultural, 38  fishery, 7 livestock products, and 26 processed foods. The 50 
imported products include 15 agricultural, 15 fishery, 6 livestock products, and 14 processed foods.  
463 2016 Guidelines for Food Safety Management, (Exhibit KOR -159), p. 6. The 2016 Guidelines f or Food 
Safety Management, (Exhibit KOR -159) revised the break -up of the 150 most frequently consumed products to 
80 and 70 for domestic and imported products, respectively. While the 80 domestic products include 
23 agricultur al, 31 fishery, 12 livestock p roducts, and 14 processed foods , the imported foods include 
20 agricultural, 20 fishery, 11 livestock products, and 19 processed foods.  WT/DS495/R  
 
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  detected in levels exceeding the 1 Bq/kg level.464 Korea provided the P anel with data on how many 
samples were tested, how many exceeded the 1 Bq/kg level, and the results of the strontium and 
plutonium testing.465  
7.50.   Therefore, the Panel  conclude s that point-of-sale testing occurs pursuant to the Korea Food 
Code and the Guidelin es for Food Safety Management on the 150 most frequently consumed 
products.  
7.5.3   Levels requi red to trigger additional testing  
7.51.   The measures do not specify the caesium or iodine level that would trigger the need for 
additional testing, instead they refer to "tr ace amounts"466, or simply if iodine or caesium "is  
detect ed."467 Japan argues, therefore, th at it is unclear from the measures what levels will trigger 
the additional testing.  
7.52.   In its responses to the Panel 's questions after the first meeting, Korea stated th at the pre -
market additional testing requirements apply when 1 Bq/kg of caesium is detect ed.468 Additionally, 
Korea explained that it requires detection results to be expressed to one decimal place, and then 
either round ed up or down to the nearest whole num ber.469 Thus, a detection level of more than  
0.5 Bq/kg would trigger the additional testing .  
7.53.   Korea cited the Korea Food Code (2012), and the 2014 -2016 Guidelines for Food Safety 
Management as proof that the 1 Bq/kg limit is codified and thus it is understood that this is what is 
being  referred to in the press releases.470 However, there is no ref erence to the 1 Bq/kg level in 
the extract of the Korea Food Code provided.471 Although the 2014 and 2015 guidelines state this 
level, the 2016 guidelines merely mention trace amounts of caesium .472 In its Diary of Radiological 
Safety Management Activity for F ood After Fukushima Nuclear Accident, Korea lists the applicable 
minimum detectable activity as " 0.7 Bq/kg, etc" .473 Korea does not point the Panel to any publicly 
available documents from the time the measures were initially adopted in 2011 for non-fishery 
(excluding livestock)  or in 2013 when they were extended to cover fishery and livestock products  
that refer to a specific detection level that would trigger the additional testing .  
7.54.   Japan argues that Korea does not adhere to a 1 Bq/kg level and has provide d the Panel with 
evidence that in at least one instance Korean authorities have requested the certificate for the 
additional radionuclides on a Japanese consignment in which 0.2 Bq/kg of caesium was detected 
during at -the-border testing.474 Japan also provid ed an exhibit which contains the results of 
Korea's at -the-border testing on Japanese products from30 March 2011 through 12 July 2016. In 
that list, 187 products were referred for additional testing. Of those products referred for 
additional testing, four had caesium levels listed as "unknown", of the remaining 183 – the lowest 
                                                
464 Korea's response to Panel question No. 95, Korea initially referred to 147 results out o f 161 samples 
referred to for testing and then updated that information in its response to Panel question No. 131 and in 
Results of Further Sr and Pu Analysis of the Samples at the Point -of-Sale, (Results of Further Analysis at Point -
of-Sale), (Exhibit KOR -283).  
465 Korea's responses to Panel question Nos. 95 and 131; Results of Further Analysis at Point -of-Sale, 
(Exhibit KOR -283).  
466 PMO Blanket Import Ban and Additional Testing Requirements Press Re lease, (Exhibit JPN -3.b).   
467 KFDA 14 April 2011 Press Release, (Exhibit JPN -55.b (revised)), (Exhibit KOR -72 (revised)).  
468 Korea's responses to Panel question Nos. 17(a) and 59.  In its first written submission, Korea had 
similarly referred to 1 Bq/kg,  although it also stated that the pre -market ad ditional testing requirements w ere 
triggered when "trace" amounts of caesium were found. See  Korea's first written  submission, para. 320 and 
fig. 2. 
469 Korea's response to Panel question No. 35 (citing Article 1 of Korea Food Code, (Exhibit  KOR-123)).   
470 Korea's response to Panel question No. 109; second written submission, para. 84.  
471 Korea Food Code (2012), Art. 1, (Exhibit KOR -123).  
472 2014 Guidelines for Food Safety Management, (Exhibit KOR -158); 2016 Guidelines for Food Safety 
Managemen t, (Exhibit KOR -159), 2015 Guidelines for Food Safety Management, (Exhibit KOR -281).  
473 Diary of Radiological Safety Management Activity for Food after Fuku shima Nuclear Accident 
(Exhibit  KOR-171 (revised)) (Diary of Radi ological Safety Management Activity) , item 42.  
474 Fisheries Agency of Japan, "Notarized Affidavit of a coffee exporter" [CONFIDENTIAL] (English 
translation), (Coffee Exporter Affidavit), (Exhibit JPN -89.b). Korea objects to the use of this affidavit because  
the names of the employee and the c ompany are redacted. See Korea's first written submission, para. 225. 
The Panel has taken note of Korea's objection and has considered this in the weight it has given to the affidavit 
in its reaching its findings.  WT/DS495/R  
 
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  caesium detection level was 0.7 Bq/kg.475 The Panel is unable to conclude based on one request  
from a regional MFDS office for one consignment  that Korea's measures apply to all Japane se 
products with a detection level as low as 0.2 Bq/kg . At the same time the Panel cannot conclude 
that in each and every instance Korean authorities have adhered to the 1 Bq/kg level, particularly 
in light of the fact that the  Guidelines Korea provided th e Panel only begin in 2014 and do not 
cover  the early years that the measure was in place.   
7.55.   Thus, the Panel conclude s, based on the evidence before us, that detection of "trace 
amounts" of caesium or iodine will tr igger the additional testing. At least sin ce 2014, "trace 
amounts " can be defined as normally anything above 0.5 Bq/kg. Nevertheless , the Panel  cannot 
exclude that individual inspection authorities at various ports may interpret this differently and 
order additional testing for even lower amounts of caesium or iodine.  
7.5.4   The additional radionuclides tested for by the Korea n authorities  
7.56.   The press release announcing the 2011 additional  testing  requirements states that "If iodine 
or cesium is detected, an inspection certificate on strontium and plutonium  shall be required 
additionally".476 Similarly, the press release announcing the 2013 additional testing requirements 
states that "the government will require the submission of test report s regarding presence of other 
nuclides such as plutonium and strontium ".477 The document containing the administrative 
instructions for the 2011 testing requirements states that "The standard adopted by Codex 
Aliment arius is applied to radionuclides subject to additional certification".478 A similar document 
for the 2013 require ments also states that an exporter must " submit [an] additional test certificate 
on other nuclides as specified by Codex Alimentarius Commission  (Codex) regarding radiation 
level".479 Japan provided evidence of specific requests from Korean import authoritie s for 
additional testing. In those request s, the authorities asked for testing on a specific list of 14 
radionuclides, including Cs-134 and Cs-137 and iodine according to the Codex standard.480 In its 
notification of the measure Korea provided to the WTO, Ko rea stated that it requires testing of 
additional radionuclides as specified by the C ODEX  Standard 193 -1995.481 Korea's SPS Enquiry 
Point, in its response to Japan's 24 June 2014 request, stated that the additional testing 
requirements are to be conducted fo r the remaining 17 radionuclides according to the limits 
prescribed by Codex.482 
7.57.   With respect to the testing Korea conducts on domestic products, Korea first states that 
testing for strontium and plutonium is compulsory for food products distributed in the K orean  
market where more than 1 Bq/kg of c aesium or iodine is detected.483 In its later submission, Korea 
states that the additional testing is req uired for strontium, plutonium and other radionuclides.484 
As evidence for this Korea refers to the Korea Food Cod e (2012) and the 2015 Guidelines for Food 
Safety Management.485 Article 1 of the Food Code refers to determining contamination with other 
                                                
475 Japan's Ministry of Agriculture Forestry  and Fisheries, "Overview of Kor ea's test results" 
(March  2011 - July 2016), (Exhibit JPN -158).  
476 KFDA 14 April 2011 Press Release, (Exhibit JPN -55.b (revised)), (Exhibit KOR -72 (revised)).  
477 PMO Blanket Import Ban and A dditional Testing Requirements Press  Release, (Exhibit JPN -3.b). 
478 Korea Food & Drug Administration, "Instruction of Changed Measure including Certificate of Food 
Imports Originated from Japan" (15 April 2011), (Exhibit KOR -40). 
479 MFDS notice for 2013 blan ket import ban and additional testin g requirements , (Exhibit JPN -75.b). 
The Panel understands Korea to be referring to the maximum guideline levels for the 17 other Codex 
radionuclides set forth in CODEX STAN 193 -1995.  
480 Korea's Ministry of Food and Drug S afety, "Notification on complementar y information in response to 
the detection of radioactivity in imported food, mako shark"[CONFIDENTIAL], (Busan branch additional testing 
request), (Exhibit JPN -86.b); Korea's Ministry of Food and Drug Safety, "Notificat ion on complementary 
information in response to the detection of radioactivity in imported food, dried bonito" [CONFIDENTIAL], 
(Exhibit JPN -87.b); Korea's Ministry of Food and Drug Safety, "Notification on complementary information in 
response to the detec tion of radioactivity in imported fo od, milk chocolate" [CONFIDENTIAL], (Exhibit JPN -
88.b).  
481 G/SPS/N/KOR/454/Add.1.   
482 Response by Korea's SPS Enquiry Point , (Exhibit JPN -30). 
483 Korea's response to Panel question No. 25.  
484 Korea's second written submissi ons, para. 363.  
485 2014 Guidelines fo r Food Safety Management, (Exhibit KOR -158); 2016 Guidelines for Food Safety, 
(Exhibit KOR -159); 2015 Guidelines for Food Safety Management, (Exhibit KOR -281); Korea Food Code 
(2012), Art. 1, (Exhibit KOR -123).  WT/DS495/R  
 
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  radionuc lides, "such as plutonium, strontium, etc. "486 The 2014 Guidelines  for Food Safety 
Management  do not address addit ional testing. The 2015 Guidelines for Food Safety Management 
state that testing should be "for additional radionuclides (Sr, Pu, etc.)".487 The 2016 Guidelines for 
Food Safety Management provide that "when trace amount of iodine or cesium is detected, furth er 
inspection to be conducted for other radionuclides (Sr -90, Pu -238, Pu -239, Pu -240) by National 
Institute of Food and Drug Evaluation".488  
7.58.   During the second meeting Korea indicated that for point -of-sale testing this additional 
testing is normally only fo r strontium and plutonium and that the remaining radionuclides are only 
tested for if the test results indicate that the strontium or plut onium exceeded Codex levels . Korea 
indicated that this was because of a lack of capacity in government laboratories an d that for 
testing the other radionuclides external laboratories would be needed.  When Korea was requested 
to confirm this in the question s following the second meeting, Korea stated that pursuant to the 
Korea Food Code (2012) "MFDS is authorized to requir e additional testing for strontium, 
plutonium, and other radionuclides", and that based on the 2015 Guidelines for Food Safety 
Management489, the Korean MFDS has required  additional testing for strontium, plutonium, and 
other radionuclides if caesium or iodi ne was detected.490 The Panel notes that when Korea 
provided the Panel with its results of further analys es on the samples taken at the poin t-of-sale, 
the data only reflects testing for  strontium and plutonium and no other radionuclides.491  
7.59.   Based on the foreg oing, t he Panel conclude s that additional testing for Japanese products 
when required is normally  for strontium and plutonium , but import authorities could demand 
additional testing for all the Codex radionuclides . We note that neither the measures, the internal 
administrative instructions, nor the 2014-2016 Guidelines for Food Safety Management specify  
under what conditions the impo rt authorities would make such a demand.  
7.5.5   Location of additional testing  
7.60.   The parties also disagree on where the additional test ing must take place.492 Japan argues 
that Korea's measures require additional  testing to be conducted in Japan, as a result of which  
food products have to be shipped back to Japan for testing.493 Korea maintains that the additional 
testing can be conducted in Korea, as long as it is by a Japanese government -authorized 
inspection institution.   
7.61.   The press releases announcing the measures th emselves as well as other exhibits , as 
mentioned  below,  provided to the Panel contain references to testing facilities designa ted, 
authorized or acknowledged by the Government of Japan. For example, the document announcing 
introduction of the 2011 testing requirements states that "[f]or additional certification , analytical 
report [is] made either by Japanese official laboratory o r by the laboratory designated by the 
Government of Japan ".494 An MFDS request from the regional office in Gyeongin to an importer to 
conduct the additional testing contains similar langua ge.495 Additionally, an affidavit from a coffee 
exporter submitted by Ja pan shows that testing for strontium and plutonium could be conducted in 
Korea for Japanese products.496 With respect to the 2013 measure, a notice by MFDS and a 
request to conduct the add itional testing from the MFDS' regional office in Busan, require that the 
test be conducted by "any inspection agency of the Japanese government or any certified 
inspection institution acknowledged by the Japanese government."497 A request from the MFDS' 
regional office in Seoul differs from the above and mandates that "[t]he test report [for the 
                                                
486 Korea F ood Code (2012), Art. 1, (Exhibit KO R-123), p. 6.  
487 2015 Guidelines for Food Safety Management, (Exhibit KOR -281), p. 9.  
488 2016 Guidelines for Food Safety Management, (Exhibit KOR -159).  
489 2015 Guidelines for Food Safety Management, (Exhibit KOR-281).  
490 Korea's response to Panel question No. 109. (emphasis added) . 
491 Results of Further Analysis at Point -of-Sale, (Exhibit KOR -283).  
492 Korea's first written submission, para. 296; opening statement at the first meeting of the Panel, 
para.31; respon se to Panel question No. 17; Japan's response to Pa nel question No. 96.  
493 Japan's first written submission, para. 136.  
494 KFDA 2011 Instruction on new certification requirements for Japanese food , (Exhibit KOR -40.b), p. 6. 
(emphasis original) . 
495 Gyeongin br anch additional testing request, (Exhibit JPN -88.b) , p. 1.  
496 Coffee Exporter Affidavit, (Exhibit JPN -89.b), p. 2.  
497 MFDS notice for 2013 blanket import ban and additional testing requirements , (Exhibit JPN -75.b), p. 
1; Busan branch additional testing reque st, (Exhibit JPN -86.b), p. 1.  WT/DS495/R  
 
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  presence of the additional radionuclides] shall be issued by test organization of Japanese 
Government or test organization in Japan approved by Japanese government."498 
7.62.   Japan interpret s a laboratory designated, authorized, or acknowledge d by the Government 
of Japan as meaning that items to be tested must be shipped back to Japan for the additional 
testing and certification, before they can then be returned to Korea for sale on the Korean 
market .499 However, Korea contends that Korean labora tories could be acknowledged by Japan.500 
Korea points to a list of Japanese certified laboratories in Korea.501 Japan responds that those 
laboratories are certified to provide pre -export te sting for Korean products destined for Japan. 
Japan explains that it c ontacted the institutes on Korea's list to assess their ability to test for the 
additional radionuclides and determined that 11 of the 25 institutes are incapable of testing for the 
additional radionuclides. One institute confirmed that it was  capable of t esting, but only for some 
of the additional radionuclides. For the remaining 13 institutes, Japan says that it was unable to 
obtain sufficient information to make an informed assessment.  For the one institute that indicated 
it could conduct additional test ing, Japan states that it is still unknown whether it is capable of 
conducting such testing for the other  additional  Codex radionuclides on a commercial scale and in 
the time -frame requi red for the importation of perishable food products .502 
7.63.   Except for one i nstance, in which the MFDS  regional office in Seoul  requested an importer to 
conduct the additional testing in Japan, the evidence before the Panel does not support Japan's 
assertion tha t imported products must be sent to Japan for the additional testing. In particular, the 
language in the measures and administrative instructions does not require return of the goods to 
Japan for testing. Additionally , the affidavit from a coffee exporter  that Japan provided to support 
its position on the  level of radionucli des tested for, shows that although the exporter could not find 
a private laboratory to conduct the tests , a Korean government laboratory was willing to do so , 
although the test s were costly and took some time to complete.503 The Panel has asked both 
parties  for information on the additional testing and they both averred that it had never actually 
been undertaken.504 Indeed, the case of the coffee exporter is the only one the Panel  is aware of 
where an exporter even attempted to find a laboratory to conduct the  additional testing either in 
Korea or Japan.  Moreover, Japan also concedes that it had initially understood that the additional 
testing of Japanese products could take place in  Korea.505  
7.64.   The balance of the evidence does not support Japan's assertion that Korea require s that 
Japanese products must be shipped back to Japan to undergo the additional testing. We therefore , 
conclude that while individual import authorities may have at times misinterpret ed the measures, 
the measures themselves permit the testing to take place in Korea so long as the Japanese 
Government has designated, authorized, or acknowledged the testing facility.  
7.65.   In light of the foregoing, the Panel concludes the fo llowing with respect to Korea's testing 
requirements:  
a. Caesium and iodine testin g is required prior to export for all consignments of Japanese 
food products from 13 prefectures506 and Japanese fisheries products from 8 prefectures.  
b. Caesium and iodine testing at the border is required  
i. Randomly for imports  from sources other than those sp ecified below  (for a tolerance 
level of 100 Bq/kg) ,  
                                                
498 Seoul branch additi onal testing request, (Exhibit JPN -87.b), p. 1.  
499 Japan's first written submission, para. 136.  
500 Korea's first written submission, para. 343.  
501 Korea's response to Panel question No. 31.  
502 Japan's response to Panel question No. 31. Japan refers to List of testing institutes and their web 
addresses cited to by Korea in footnote 63 of its first written submission. See also List of Japanese authorized 
testing institutes in Korea,  (Exhibit JPN -196), pp. 1 -2. 
503 Coffee Exporter Affidavit, (Exhibit JPN -89.b), p. 2 . 
504 Japan's and Korea's responses to Panel question No. 128.  
505 Japan's response to Panel question No. 96.  
506 KFDA 2011 Changed Measure Instruction, (Exhibit KOR -40.b). The 13 prefectures are : Miyagi, 
Fukushima, Gunma, Tochigi, Ibaraki, Chiba, Saitama, Kanag awa, Shizuoka, Nagano, Tokyo, Yamagata, Niigata.  WT/DS495/R  
 
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  ii. with an increased frequency for certain products (such as dried fruits and 
mushrooms) from more than 40 countries  to testing at the border on a random 
basis and for every consignment of blueberry produc ts from certain manufacturers 
from Ukraine, France, D enmark and Sweden  (for a tolerance level of 100 Bq/kg) , 
and  
iii. always for products originating from Japan. However, Korea may elect not to conduct 
that testing if the pre -export certificate indicated a ca esium or iodine level above 1 
Bq/kg  ( if the level of  caesium or iodine detected is more than 0.5 Bq/kg  it is 
referred for additional testing . If the level of caesium or iodine is above 100 Bq/kg 
the product is rejected ). 
c. Since 2014 Korea has conducted pre -market  caesium and iodine (for a tolerance level of 
100 Bq/kg)  testing on randomly selected domestic  agricultural and fishery  products , but 
there is no record evidence that the additional testing is conducted at that stage.  
d. Point-of-sale caesium and iodin e testing , as well as additional testing if required507, is 
conducted randomly on the 150 most consumed products in Korea . If caesium is found 
at a level higher than  0.5 Bq/kg in a ny of these 150 most consumed products , additional 
testing for at least stront ium and plutonium will be conducted.  
e. If a sample is r eferred for additional testing the testing will be conducted for strontium  
and plutonium  for Japanese products, other imports, and Korean domestic products. 
Korean authorities may , at their discretion , require test certificates for the other  Codex  
radionuc lides.  
f. The additional testing may take place in Korea so long as the Japanese Government has 
designated, authorized, or acknowledged the testing facility . 
7.66.   A summary of these conclusions can be found in Table 9  below.  
 
Table  9: Summary of Korea's testing requirements:  
PRE-EXPORT  
Japan  Other countries  Domestic  
Certificate of caesium and iodine 
testing for food products from 13 
prefectures and fishery products 
from 8 prefectures . 
   
 
 
 
 
 
AT-THE-BORDER  PRODUCTION STAGE  
Japan  Other countries  Domestic  
Certificate of origin  
 
 Certificate of origin  
 
  
 
Caesium and Iodine testing of 
samples from every consignment  
 Caesium and iodine testing of 
samples from randomly selected 
consignments , increased frequency 
for certain products from more 
than 40 countries and for every 
consignment of blueberry products 
from certain manufacturers from 
Ukraine, France, Denmark and 
Sweden  
 Caesium and iodine testing on 
randomly selected  samples of 100 
frequently consumed priorit y 
agricultural and fishery  products  
 
                                                
507 See Korea's revised Annex B submitted in response to Panel question No. 109; second written 
submission, para. 376.  
 WT/DS495/R  
 
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  AT-THE-BORDER  PRODUCTION STAGE  
Japan  Other countries  Domestic  
If caesium or iodine is more than 
0.5 Bq/kg , additional testing  for at 
least strontium and plutonium  
 
If caesium  or iodine  is more than 
100 Bq/kg, shipment is rejected  
 If caesium or iodine is more than 
100 Bq/kg, ship ment is rejected  With a tolerance level of 100 Bq/kg  
for caesium or iodine  
 
 
 
 
 
POINT -OF-SALE  
Japan  Other countries  Domestic  
Caesium and iodine testing on 
randomly selected samples of the 
150 most frequently consumed 
products   
 
 Caesium and iodine test ing on 
randomly selected samples of the 
150 most frequently consumed 
products   
 
 Caesium and iodine testing on 
randomly selected samples of the 
150 most frequently consumed 
products   
 
 
If caesium or iodine is more than 
0.5 Bq/kg, additional testing for at 
least strontium and plutonium  
 If caesium  or iodine  is more than 
0.5 Bq/kg, additional testing for at 
least strontium and plutonium  
 If caesium  or iodine  is more than 
0.5 Bq/kg, additional testing for at 
least strontium and plutonium  
 
 
7.6  Provisional measur es  
7.67.   Korea argues that its measures were adopted provisionally pursuant to Article 5.7 of the 
SPS Agreement. Korea maintains that because the measures were adopted provisionally this 
affects the Panel's analysis of the substantive elements of Japan's claims  under other provisions of 
the SPS Agreement. The Panel will first turn to an analysis of whether Korea's measures fall within 
the scope of Article 5.7 and then, if necessary, turn to the questi on of how that might affect the 
Panel's analysis of Japan's cl aims.  
7.68.   Article 2.2 of the SPS Agreement provides:  
Members shall ensure that any sanitary or phytosanitary measure is applied only to 
the extent necessary to protect human, animal or plant life or  health, is based on 
scientific principles and is not maintain ed without sufficient scientific evidence, except 
as provided for in paragraph 7 of Article 5.  
7.69.   Article 5.7 provides:  
In cases where relevant scientific evidence is insufficient, a Member may pro visionally 
adopt sanitary or phytosanitary measures on the bas is of available pertinent 
information, including that from the relevant international organizations as well as 
from sanitary or phytosanitary measures applied by other Members.  In such 
circumsta nces, Members shall seek to obtain the additional information necessary for 
a more objective assessment of risk and review the sanitary or phytosanitary measure 
accordingly within a reasonable period of time.  
7.6.1   Burden of proof under Article 5.7  
7.70.   Korea argues that its SPS measures have been taken pursuant to Article 5.7 of the 
SPS Agreement.508 According to Korea, Article 5.7 is a "core" part of the SPS Agreement, providing 
context for the interpretation of every provision of the SPS Agreement.509 Thus, although Ja pan 
did not make a claim under Article 5.1, Korea submits that  the insufficiency of scientific evidence  
                                                
508 Korea's first written  submission, para. 83.  
509 Korea's response to Panel question No. 108 . 
 WT/DS495/R  
 
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  is a relevant factor510 that the Panel  would need to consider in evaluating Japan's  claims with 
respect to Article 2.3511; Article 5.6512; and Article 8 and Annex C(1)(a) and C(1)(e).513 Korea 
argues that as Japan bears t he burden of proof under Article 5.7  and that  because Japan did not 
raise the article in its claims, the Panel must presume that Korea's provisional measures fall within 
the scope of Article  5.7 because they are consistent with all of the elements of that provision .514 
Korea also argues that there is no burden of proof for matters of interpretation.515 
7.71.   Japan argues that, when properly invoked, Article 5.7 acts as a qualified exemption from 
the ob ligation of Article 5.1, but not from the obligations under Articl es 2.3, 5.6, 7 , and 8. Japan 
does not dispute that the nature and quality of scientific evidence, including its sufficiency, are 
relevant to the Panel's assessment of the facts of the disput e.516 Japan does agree that the 
insufficiency of scientific evidence  may be taken into account in the analysis of other provisions ; it 
argues that it may be useful with respect to the analysis of discrimination under Article 2.3 and 
Article 8 and Annexes C(1 )(a) and C(1)(g), to the analysis of whether an alternative measur e 
achieves the importing Member's ALOP under Article 5.6, and the assessment of necessity under 
Article 8 and Annexes C(1)(c) and C(1)(e).517 Japan maintains that insufficiency of scientific 
evidence does not constitute a valid basis to allow Members to bypa ss their transparency 
obligations under Article 7 and Annex B.518 With respect to the burden of proof, Japan argues that 
Korea, as the party raising Article 5.7, bears the burden of proving th at the requirements of that 
provision have been satisfied.519 
7.72.   The th ird parties generally agree that the insufficiency of the scientific evidence can be 
relevant  to an analysis of conformity with the other obligations – such as in determining whether 
similar  conditions prevail or a measure arbitrarily or unjustifiabl y discriminates within the meaning 
of Article 2.3; or to the demonstration of the various criteria required to establish an inconsistency 
with Article 5.6 such as whether an alternative measure ac hieves the ALOP or is technically 
feasible.520 New Zealand argues th at compliance with the publication obligations in Annex B(1) is 
especially important in the case of provisional measures which are adopted without prior notice 
and without Members having had  an opportunity to comment.521  
7.73.   The European Union implied that a di fferent standard should be applied to provisional 
measures when reviewing them for non -discrimination under Article 2.3.522 It also maintained that 
such different standards could be applicable  even if the challenged measure did not satisfy all of 
the require ments of Article 5.7.523 Canada cited the finding of the Panel in EC – Approval and 
Marketing of Biotech Products  for the principle that Article 2.3 applies to measures adopted 
pursuant to Article 5.7 and that there are not two "parallel universes" in the SP S Agreement with a 
different set of obligations for provisional measures and definitive measures.524 Canada and N ew 
Zealand agreed that if the Panel were to take into account the  provisional nature of the measure s 
in an analysis under Articles 2.3 and 5.6 then it must be demonstrated that the measures are 
provisional within the meaning of  Article 5.7. New Zealand als o submitted that the burden of 
demonstrating compliance with Article 5.7 is on the party invoking the provision.525  
7.74.   With respect to the burden of proof, the panel in EC – Approval and Marketing of Biotech 
Products , operating under the premise that Article 5 .7 is a "qualified right", concluded that 
                                                
510 Korea's responses to Panel question Nos. 104, 105, 107(a), 107(c), and 108; second written 
submission, paras. 173 and 298.  
511 Korea's response to Panel question No. 107(a).  
512 Korea's second written submission, para. 298.  
513 Korea's response to Panel ques tion No. 107(c).  
514 Korea's responses to Panel question Nos. 105 and 151.  
515 Korea's response to Panel question No. 105.  
516 Japan's second written submission, para. 54.  
517 Japan's re sponse to Panel question No. 108.  
518 Japan's response to Panel question No. 108 . 
519 Japan's second written submission, paras. 58 -60. 
520 Canada, European Union, and New Zealand's responses to Panel question No. 6 to third parties.  
521 New Zealand's third -party s tatement, para. 9.  
522 European Union's third -party submission, para. 44.  
523 European Union's response to Panel question No. 6 to third parties.  
524 Canada's response to Panel question No. 6 to third parties (citing Panel Report s, EC – Approval and 
Marketing of  Biotech Products , para. 7.2947). See also New Zealand's third -party statement , para. 6.  
525 New Zealand's third -party statement, paras. 6 -7; Canada's response to Panel question No. 6 to third 
parties.  WT/DS495/R  
 
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  because Article 5.1 is only applicable if Article 5.7 is not, "when a complaining party presents a 
claim of violation under Article 5.1, the burden is on the complaining party to establish a prima 
facie case of inc onsistency with both Articles 5.1 and 5.7" .526 The Appellate Body has referred to 
Article 5.7 as a qualified exemption from the obligation in Artic le 2.2.527 In both Japan – 
Agricultural Products II and Japan – Apples  it was the responding party that invoked A rticle 5.7 
and neither the panels nor the Appellate Body  question ed that it was the responding party that 
bore the burden of proof.528 In the Panel's view , adopting Korea's premise would mean that if a 
complainant does not assert Article 5.7 in its request f or establishment of a panel all a respondent 
needs to do is  assert  that its measure is a provisional measure within the meaning of Article 5.7, 
without any proof, and it is  thus automatically exempted from a variety of obligations under the 
SPS Agreement. Such an interpretation would require every complainant raising claims under the 
SPS Agreement to invoke Article 5.7 in its request, even if it we re irrelevant, and expend 
consid erable time disproving its applicability simply to forestall such a litigation tactic being 
employed. This would generate considerable additiona l work for the parties and the p anels in 
dealing with such issues and would not facilitate the fair, prompt and effective resolution of the 
actual matter in dispute .529  
7.75.   Korea has asserted several factual premises underlying its arguments – most importantly 
that there was insufficient scientific evidence to conduct an objective assessme nt of the risk. The 
panel in US – Animals  rightly noted that "nothing in the case law on Article 5.7 or other provisions 
which establish exemptions or provide the ability to derogate from certain WTO obligations 
supersedes the basic premise that the party asserting something bears the bu rden of proving 
it."530 Therefore, in our view, Korea bears the burden of proving that Article 5.7 is applicable to its 
measures . 
7.6.2   Four requirements for the applicability of Article 5.7  
7.76.   Article 5.7 provides that Members may ado pt and maintain provisional SPS measures 
without basing them on  a risk assessment that conforms to Article 5.1 so long as the four 
requirements set forth in Article 5.7 are satisfied. First, the relevant scientific information must be 
insufficient to condu ct a risk assessment. Second, th e provisional measure must be adopted on the 
basis of available pertinent information. Third, the Member adopting the provisional measure must 
seek to obtain the additional information necessary for a more objective assessme nt of risk. 
Fourth, the Member m aintaining the SPS measure must review that measure within a reasonable 
period of time. The Appellate Body has explained that the first two requirements relate to the 
adoption  of the measure while the latter two requirements  "relate to the maintenance  of a 
provisional  phytosanitary measure and highlight the provisional  nature of measures adopted 
pursuant to Article 5.7 ".531 Nevertheless, the four requirements are cumulative, with the 
consequence that an SPS measure falls within  the scope of Article 5.7 only if all four requirements 
are fulfilled .532 
7.77.   As regards the first requirement, in Japan – Apples  the Appellate Body clarifie d that mere 
scientific uncertainty regarding aspects of the risk addressed is insufficient to trigger the  
                                                
526 Panel Report s, EC – Approval and Marketing of Biotech Products , para. 7.3000. We note that the  
panel in EC – Approval and Marketing of Biotech Products  based its reasoning on the Appellate Body 
decision in EC – Tariff Preferences  on similar language in the Enabling Clause, which was issued later in time 
than the Appellate Body decision that discussed Article 5.7 of the SPS Agreement. T he Appellate Body in EC – 
Tariff Preferences  stated that where the permissive provision constitutes a right rather than an exception, "the  
complaining party bears the burden of establishing that a challenged measure is inconsistent with the 
provision  permi tting particular behaviour". Appellate Body Report, EC – Tariff Preferences , para. 88.  
527 Appellate Body Report, Japan – Agricultural Products II , para. 80.  
528 Appellate Body Report, Japan – Agricultural Products II , paras. 86 -94 and Appellate Body Report, 
Japan – Apples , paras. 169 -188. 
529 See Appellate Body Report, US - FSC, para. 166.  
530 Panel Report, US – Animals , para. 7.292 (citing Appellate Body Report, Japan – Apples , para. 157 
("the party that asserts a fact is responsible for providing proof thereof." ). Our view is confirmed by the 
Appellate Body in Canada – Renewable Energy / Canada – Feed-in Tariff Program  (where the Appellate Body 
concluded that "the ch aracterization of  [a] provision as a derogation does not pre -determine the question as to 
which pa rty bears the burden of proof  with regard to the requirements stipulated in the provision".) (Appellate 
Body Report, Canada – Renewable Energy / Canada – Feed-in Tariff Program , para. 5.56 (referring to Appellate 
Body Report, China – Raw Materials , para. 3 34)). 
531 Appellate Body Report, Japan – Apples , fn. 318 to para. 176 (emphasis original).  
532 Appellate Body Report, Japan – Agricultural Products II , para. 89.  WT/DS495/R  
 
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  application of Article 5.7.533 Furthermore, in US/Canada – Continued Suspension, the Appellate 
Body concluded "[t]he possibility of conducting further r esearch or of analysing  additional 
information, by itself, should not mean that the relevant scientific e vidence is or becomes 
insufficient."534 Indeed, the Appellate Body explained that the "insufficiency" of the scientific 
evidence is "not a perennial stat e, but rather a transitory one" .535 
7.78.   Scientific evidence is insufficient when "the body of available scienti fic evidence does not 
allow, in quantitative or qualitative terms, the performance of an adequate assessment of risks as 
required under Article 5.1 and  as defined in Annex A to the SPS Agreement ".536 In order to assess 
the existence of sufficient scientific evidence, the panel in Russia – Pigs (EU)  considered a number 
of sources, including general scientific evidence in scientific reports and opinions prod uced by 
international organizations and in articles published in scientific journals, scientific evidence  
provided by the experts consulted by the panel in response to the questions from the panel, and 
scientific evidence available in respect of the releva nt international standards.537 
7.79.   According to Korea, there is insufficient scientific evidence to conduct an adequate 
assessment of the risks  of consuming  Japanese  food products contaminated with radionuclides 
released from the FDNPP .538 Korea does not argue tha t there is insufficient scientific evidence to 
determine the risk of radionuclides to human health  or how  to test for radionuclides in food 
products to ensure they are below established levels , but rather that the information is insufficient 
to know the extent of the release of radionuclides during and after the Fukushima Dai -ichi 
accident.539  
7.80.   In particular, w hen the Panel asked Korea to identify the relevant insufficiency it pointed to 
a variety of factors inter alia  where evidence was insufficient:  
a. the amount and types of radionuclides released during the FDNPP accident (particularly 
radionuclides other than  caesium);  
b. the amount and type of radionuclides released since the FDNPP accident;  
c. the types and amount of radionuclides remaining at the FDNPP;  
d. the status of the radioactive material remaining in the FDNPP;  
e. the likelihood of future releases of radioac tive materials into the ocean;  
f. the amount and type of radionuclides on land and in the ocean off the coast of Japan;  
g. the amount and type of radion uclides in the seabed;  
h. the amount and type of radionuclides ingested by marine species living in the ocean off 
the coast of Japan; and  
i. the relationship between caesium and other radionuclides.540  
7.81.   Korea further argues  that the data collected as part of Jap an's food monitoring programme 
is of limited usefulness and representativeness for purposes of conducting a proper risk 
assessment.541 Korea argues that information on radionuclides other than caesium is insufficient 
due to the unique features of the FDNPP  accident, including ongoing spills of liquid radioactive 
                                                
533 Appellate Body Report, Japan – Apples , para. 184.  
534 Appellate Body Report,  US/Canada – Continued  Suspension, para. 702 . 
535 Appellate Body Report,  US/Canada – Continued Suspension, para. 679.  
536 Appellate Body Report, Japan – Apples , para. 179.  
537 Panel Repo rt, Russia – Pigs (EU) , para. 7.661.  
538 Korea's second written submission, para. 298.   
539 Korea's se cond written submission, paras. 33 -34. 
540 Korea's response to Panel question No. 105.  
541 Korea's second written submission, para. 92.  WT/DS495/R  
 
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  waste, making Japan's estimates of amounts of stront ium, based on the assumption of a constant 
ratio between Sr -90 and Cs -137, unwarranted.542  
7.82.   Japan submits that there is no relevant uncertainty or ins ufficiency in the scientific evidence 
that would justify discrimination against Japanese food products or th at would render necessary 
the trade restrictions imposed on these products. According to Japan, Korea has failed to assess 
the relevant scientific e vidence and "seems intent on ignoring the extensive scientific evidence".543 
Japan cites  reports from  UNSCEAR,  from the IAEA, and from the WHO, as well as a joint review by 
the IAEA and the FAO.544 According to Japan, Korea's choice not to consider the availab le scientific 
evidence does not refute the existence of that evidence.545 
7.83.   The Panel notes that it is not looki ng at one measure, but a series of measures adopted 
over time. Some measures were adopted shortly after the accident, while others several years 
later. Therefore,  the Panel cannot take a single approach to the sufficiency of the scientific 
evidence, but ra ther must look at the scientific evidence that was available at the time of adoption 
of each measure.  
7.84.   Simply because a measure is adopted in response to an emergency situation does not 
necessarily mean that there is insufficient scientific evidence to con duct a risk assessment. It may 
be that the risks are so well known that  other risks assessments on the same matter might already 
exist or that  it would be sufficient to conduct a risk assessment "appropriate to the circumstances" 
to identify the hazard and  the measure in light of that hazard.546 The Panel recalls that the Codex 
guideline levels as well as the ICRP dose coefficients and 1 mSv/year dose limit were established 
well before the FDNPP accident. The Panel also recalls that the ability to test for ra dionuclides 
already existed at the time Korea imposed the measures. At the same time, the Panel notes that 
regulators were uncertain about the  extent of the accident  in particular, the radionuclides  that had 
been released into the environment  and in what a mounts . The Panel notes that Japan adopted its 
own measures in March 2011 on an emergency basis in the absence of a risk assessment.547 
Therefor e, with respect to the additional testing requirements adopted in 2011, the Panel agrees 
that they were adopted in  a situation where there was insufficient scientific evidence.   
7.85.   The Panel now turns to the measures adopted after the immediacy of the acciden t. In that 
regard, Korea argues that there continu es to be  insufficien t scientific evidence on the amount and 
types of radionuclides released during and since the accident.   
7.86.   Korea adopted the  product -specific import bans  that are the subject of Japan's cl aim 
(namely those on Alaska pollock from Fukushima and Pacific cod from Aomori, Iwate, Miyagi, 
Ibaraki, and Fukush ima) to mirror those internal restrictions imposed by Japan. Japan im posed 
(and then removed) these measures based on an assessment  from its F ood Safety Commission on 
the levels of radiation in food that would have an impact on health in combination with m onitoring 
data on the specific products in specific prefectures .548 Korea itself, states that it relied on Japan's 
conclusions in crafting its m easures.549  
7.87.   In 2013, Korea tightened its existing measures by instituting a blanket import ban on all 
fishery produ cts from eight prefectures as well as extending the additional testing requirements to 
fishery and livestock products. These measures were a response to the disclosure, in July 2013, of 
leaks at the FDNPP. Both parties agree that there have been leaks  at the FDNPP since the initial 
accident in March 2011. T able 10 summarizes the leak  event s that one or both parties allege to 
                                                
542 Korea's second written submission, para. 182. The Panel notes that Japan maintains and all the 
experts confirmed that Japa n's methodology does not assume a constant ratio between Cs -137 and Sr -90. 
543 Japan's second written submission, paras. 61 -62. 
544 Japan's response to P anel question No. 108.  
545 Japan's second written submission, para. 10.  
546 For example, the panel in US – Animals concluded that in light of the extensive scientific knowledge 
of foot -and-mouth disease and the relevant recommendations from the OIE that simply  identifying that there 
had been an outbreak and the potential effects on the US industry if the disease sp read in the US was an 
appropriate risk assessment upon which to base a temporary ban on all imports. See Panel Report, US – 
Animals , paras. 7.330 -7.335. 
547 FAJ Monitoring Report (Exhibit JPN -43), p. 11.  
548 FAJ Monitoring Report (Exhibit JPN -43). 
549 Korea's fi rst written submission, paras. 33 -35. WT/DS495/R  
 
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  have left the FDNPP  site and entered the environment550 between the initial accident and the 
adoption of Korea's blanket import ban and extension of the additional testing requirements in 
September 2013 . The table includes  the view of each party on the possible impact of each 
particular leak event and on whether it actually reached the ocean. For one leak in August 2013, 
Korea disputes wit h Japan that the contaminated water reached the ocean. With respect to one 
leak in May 2013, Japan and Korea agree that the tanks affected we re related to reactor units Nos. 
5 and 6  at the FDNPP . However, Japan maintains that , because reactor units Nos. 5 and 6 were 
not damaged during the accident , the water inside the tanks was not contaminated, while Korea 
maintains that the water was contami nated.  
  
                                                
550 There were numerous other leaks or overflows at the FDNPP in this time -period. However, Japan 
maintains and K orea does not contest that these leaks did not leave the building or the dike and actually enter 
the ocean.  See Japan's response to Panel's advance question No. 8, Korea's response to Panel question No. 9.  WT/DS495/R  
 
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  Table 10: Leak  event s at the FNDPP from Apr. 2011 – Sept. 2013 that are alleged to have  
reached the ocean551 
Date Leak Event  Water amount 
outflowed to 
the ocean  
(estimate)  Radioactive materials 
outflowed to the ocean  
(estimate)  Disagreement 
between Korea552 and 
Japan  
1 Apr. 2011  Leakage from the pit 
near the intake channel 
of Unit 2  Approximately 
500m3  I-131 2.8x10^15Bq  
Cs-134 9.4x10^14Bq  
Cs-137 9.4x10^14Bq  - 
4 Apr. 2011  Discharge of 
contaminated water 
from the Central 
Radioactive Waste 
Disposal Facility, etc.  Approximately 
1,0393m3  I-131 6.6x10^10Bq  
Cs-134 4.2x10^10Bq  
Cs-137 4.2x10^10Bq  - 
10 May 2011  Leakage fr om the pit 
near the intake channel 
of Unit 3  Approximately 
250m3  I-131 9.8x10^12Bq  
Cs-134 9.3x10^12Bq  
Cs-137 8.5x10^11Bq  - 
27 June 2011  Leakage at the piping 
between the treated 
water tank and the 
water injection pump to 
the reactor   No significant increa se of 
radioactivity was detected in 
the seawater adjacent to the 
FDNPS553 Korea disagrees with 
Japan's claim that many 
of the leak events it 
presented to the Panel 
resulted in no significant 
release of radioactivity 
as TEPCO 's data 
confirmed that prior to 
the initial operation of 
the ALPS in 2013, 
contaminated water 
leaked from the FDNPP 
included Sr -90 and 
other radionuclides at 
levels that were more 
than a million times the 
threshold of Japan.  29 June 2011  Two pinholes at cooling 
water injection line at 
the accumulated water 
treatment facility   No significant increase of 
radioactivity was detected in 
the seawater adjacent to the 
FDNPS  
29 June 2011  Leakage at the drain, 
lower part of Reverse 
Osmosis concentrated 
water storage  
  No significant increase of 
radioactivity was detected in 
the seawater adjacent to the 
FDNPS  
31 July 2011  Leakage at Reverse 
Osmosis transfer line  
  No significant increase of 
radioactivity was detected in 
the seawater adjacent to the 
FDNPS  
8 Oct. 2011  Leakage from the piping 
of the Water 
Desalinations   No significant increase of 
radioactivity was detected in 
the seawater adjacent to the 
FDNPS  
24 Oct. 2011  Suspension of the Water 
Desalinations (Reverse 
Osmosis) (Leakage from 
pump gland)   No significant increase of 
radioactivity wa s detected in 
the seawater adjacent to the 
FDNPS  
                                                
551 Unless otherwise noted, the information in this table comes from Japan's response to Panel's 
advance question No. 8; Korea's response to Panel question No.  9; and Japan's second written submission, 
Table 6.  
552 Unless otherwise specified, Korea's disagreements with Japan are contained in Korea's second 
written submission, para. 74, where Korea cites Tokyo Electric Power Company Holdings, Inc., "The Amount of 
Tritium and the Chemical Quality of the Water Treated by the Multi -Nuclide Removal Equipment in the Case of 
the Fukushima Dai -ichi Nuclear Power Plant ", April 24, 2014, available at 
http://www.meti.go.jp/earthquake/nuclear/pdf/140424/140424_02_003.pdf, (Exh ibit KOR -201).  
553 In its response to Panel question No. 9, Japan explains that the results of its seawater monitoring 
were and are used to determine i f a release event results in a significant increase of radioactivity. According to 
Japan, where, around the  time of the leak event there was no clearly identifiable and discernible increase in 
the level of radioactivity in seawater Japan concluded that the  leak event resulted in no significant increase of 
radioactivity. To support this, Japan cites to raw data in "Data underlying Seawater Monitoring near the 
Fukushima Dai -ichi Site", (Exhibit JPN -163) and graphs in "Seawater Monitoring near the Fukushima Da i-ichi 
Site", (Exhibit JPN -162).  WT/DS495/R  
 
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  Date Leak Event  Water amount 
outflowed to 
the ocean  
(estimate)  Radioactive materials 
outflowed to the ocean  
(estimate)  Disagreement 
between Korea552 and 
Japan  
17 Nov. 2011  Suspension of the Water 
Desalinations (Reverse 
Osmosis)   No significant increase of 
radioactivity was detected in 
the seawater adjacent to the 
FDNPS  
25 Nov. 2011  The Water Desalinations 
(Reverse Osmosis)  
-Water leakage at the 
transfer line to the 
buffering tank -  No significant increase of 
radioactivity was detected in 
the seawater adjacent to the 
FDNPS  
4 Dec. 2011  Water leakage from the 
Evaporative 
Concentration Unit  Approximately 
0.15m3  Cs-134 1.8x10^6Bq  
Cs-137 2.3x10^6Bq  
Sr-89 7.4x10^9Bq  
Sr-90 1.7x10^10Bq   
14 Jan.2012  Leakage was detected 
during the water passing 
check at the Unit 1 
accumulated water 
transfer line   No significant increase of 
radioactivity was detected in 
the seawater ad jacent to the 
FDNPS  
Radioactive Materials in the 
leaked wat er 
I-131: Non -Detectable  
Cs134:1.8x10^2Bq/L  
Cs137:2.0x10^2Bq/L  Korea disagrees with 
Japan's claim that many 
of the leak events it 
presented to the Panel 
resulted in no significant 
release of radioa ctivity 
as TEPCO 's data 
confirmed that prior to 
the initial operation of 
the ALPS in 2013, 
contaminated water 
leaked from the FDNPP 
included Sr -90 and 
other radionuclides at 
levels that were more 
than a million times the 
threshold of Japan.  
29 Jan.2012  Water leakage (Unit 3 
Condensate storage 
tank, flowmeter of 
pump, etc.)   No significant increase of 
radioactivity was detected in 
the seawater adjacent to the 
FDNPS  Korea disagrees with 
Japan's claim that many 
of the leak events it 
presented to the Panel 
resulted in no significant 
release of radioactivity 
as TEPCO 's data 
confirmed that prior to 
the initial operation of 
the ALPS in 2013, 
contaminated water 
leaked from the FDNPP 
included Sr -90 and 
other radionuclides at 
levels that were more 
than a million time s the 
threshold of Japan.  30 Jan. 2012 Water Leakage (Water 
injection line A on a 
rising ground, mini flow 
line flange )  No significant increase of 
radioactivity was detected in 
the seawater adjacent to the 
FDNPS  
26 Mar. 2012  Leakagae from Kanaflex 
piping at H4 area  Approximately 
0.08m3  Gross β 1.1x10^10Bq  
Cs-134 3.3x10^5Bq  
Cs-137 5.0x10^5Bq  - 
5 Apr. 2012  Leakage from reverse 
osmosis transfer line  
 Approximately 
0.00015m3  Gross β 2.0x10^7Bq  
Cs-134 1.0x10^3Bq  
Cs-137 1.5x10^3Bq  - 
17 May 2013  Overflow of water 
treated water units No. 
5, 6 (Tank D 7) and 
seeped into surrounding 
ground.  
 
 27.5 tonnes   
 Below detection levels   (Japan) This leakage 
was observed from a 
tank D7, located around 
Units 5 -6 of FDNPP, 
which were not 
damaged by the 
accident.  The water WT/DS495/R  
 
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  Date Leak Event  Water amount 
outflowed to 
the ocean  
(estimate)  Radioactive materials 
outflowed to the ocean  
(estimate)  Disagreement 
between Korea552 and 
Japan  
contained in the tank 
was not contaminated . 
The sampling results 
obtained yesterday  (16 
May 2013)  for treated 
water having overflowed 
from the D7 tank are 
below the detection 
limits.   
(Korea) Leakage of 
contaminated water  
19 Aug. 2013  Water from  the drain 
valve of the dike at H4 
tank area. .554  300 metric tons   
 
  No significant increase of 
radioactivity was detected in 
the seawater adjacent to the 
FDNPS.  
 
(Japan)Leaked Radioactive 
Materials: Sr90:4.5x10^13Bq  
 
(Korea)  –  
Cs-134: 4.4×10 Bq/cm3  
Cs-137: 9.2×10Bq/cm3 
Sb-125: 5. 3 × 10Bq/cm3  
Grossβ: 2. 0 × 105Bq/cm3 According to Japan this 
leakage is not confirmed 
to have reached the sea.  
Korea says that there 
has been leakage into 
the sea as a result of 
this event.  
 
Korea disagrees with 
Japan's cl aim that many 
of the leak events it 
presented to the Pan el 
resulted in no significant 
release of radioactivity 
as TEPCO 's data 
confirmed that prior to 
the initial operation of 
the ALPS in 2013, 
contaminated water 
leaked from the FDNPP 
included Sr -90 and 
other radionuclides at 
levels that were more 
than a millio n times the 
threshold of Japan.  
 
7.88.   Korea points to news articles from July 2013 to argue that there are undisclosed amounts of 
leaks of radionuclides and that this uncertainty about the total amount released means that there 
is insufficient scientific evide nce to conduct a risk assessment.555  
7.89.   The Panel recognizes the importance of confidence in the regulatory authorities of an 
exporting country with respect to food safety and does not discount K orea's concerns about 
transparency as to what could be occurring at the FDNPP. At the same time, the Panel must weigh 
these concerns against their relevance to the question at hand , which is whether Korea had 
sufficient evidence to assess the risk of the p resence of radionuclides in food consumed by Korean 
consumers in excess of Korea's appropriate level of protection . We recall in this respect that 
scientific evidence need not be 100% complete or perfect to be sufficient to form the basis for an 
objective assessment of the risk.  
7.90.   Korea provided the Panel with  media  repor ts from late July 2013  noting that TEPCO had not 
admitted that due to data collected from monitoring points they had concluded that more 
radioactively contaminated water was leaking from the plant than previously disclosed. TEPCO first 
suspected that the w ater was leaking into the ocean on 19 June when it found strontium and 
                                                
554 Korea's first written submission, para. 45 ; Y. Kubota and Y. Obayashi, Wrecked Fukushima storage 
tank leaking highly radioactive water , Reuters, 20 August 2013, http://www.reuters.com/article/us -japan -
fukushima -leak-idUSBRE97J0292013082 0, (Reuters – Wrecked Fukushima storage tank),  (Exhibit KOR -46). 
555 Korea's first written submission, paras. 39 -55. WT/DS495/R  
 
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  tritium in a monitoring well at a turbine complex within the FDNPP.556 TEPCO informed the public 
of these test results, bu t did not clarify that there was a risk of the contaminated water  reaching 
the port. The Japanese Nuclear Regulation Authority suspected on 10 July that there was a leak 
and contacted TEPCO.557 The Japanese authorities informed the public of their suspicions . A New 
York Times  article from 10 July 2013 indicated that spike s in caesium had been detected since May 
as well as higher strontium and tritium readings offshore.558 TEPCO and  Japanese  authorities 
suspected there were leaks because there were spikes in rea dings of radioactive elements in sea 
water and at other monitorin g points in turbines and groundwater. In a National Geographic  article 
from August 2013, Dr Buesseler is quoted as saying that his consistent readings for Cs -134 since 
the accident indicated that there were continuing releases as otherwise the numbers shou ld 
diminish as the radionuclides decay.559 The National Geographic  article also provides a link to an 
article in Nature, summarizing the work of Jota Kanda , an oceanographer at Tokyo University  of 
Marine Science and Technology , who estimated in 2012 that the  FDNPP was leaking 
0.3 terabecquerels (trillion becquerels) of Cs -137 per month and a similar amount of CS -134.560  
7.91.   Although specific amounts could not be tied to specific dates, such as in the table above,  
some estimates were publicly available. For example , TEPCO provided sampling data  of ground 
water observation holes Nos. 1 to 5  from 31 July 2013 that showed Cs -134 at 21 Bq/L and Cs -137 
at 44 Bq/L. However, on 5 August 2013 those rates at  the same testing site had spiked to Cs -134 
310 Bq/L and Cs -137 650 Bq/L.561 The National Geographic  also indicated that releases of 
strontium were proportionally higher vis-à-vis caesium than they had been in the initial accident, 
but did not address absolu te levels of strontium being released.562 Several sources also indicat ed 
that approximately 300 -400 tons a day of water were being released from the FDNPP. How much 
of that water was contaminated and by what radionuclides was not precisely indicated.563 All of the 
above -referenced information was available prior to Korea's ado ption of the 2013 measures. The 
Panel also notes that sea water monitoring data at the FD NPP site, the ERD data, the UNSCEAR 
data 564, and other scientific studies as to the on -going environ mental situation in Japan are all 
publicly available.  
7.92.   The Panel aske d the experts about the relevance of additional  leaks or an uncertainty about 
the amounts and share of radionuclides to an assessment of the risk associated with consumption 
of Japanese food products. The experts again reiterated that the best way to know what is in food 
consumed is by testing it.565 Professor  Anspaugh noted that uncertainty about the amounts of 
radionuclides and relative share of different radionuclides r eleased i n the FDNPP accident is not an 
important issue as it is far more useful to perf orm measurements on the foods .566 Ms Brown noted 
                                                
556 J. Adelman and Y. Okada, "Tepco President Apologizes for Fukushima Leak Disclosure Delay", 
Bloomberg , 26 July 2013, http://www.bloomberg.com/news/articles/2013 -07-26/tepco -president -apologizes -
for-fukushima -leak-disclosure -delay , (Bloomberg : TEPCO President Apologi zes for Fukushima Leak Disclosure 
Delay  ),(Exhibit KOR -43). 
557 Bloomberg : TEPCO Pre sident Apologizes for Fukushima Leak Disclosure Delay , (Exhibit KOR -43). 
558 (10 July 2013): Head of Japan's NRA has told reporters the contaminated water has probably been 
leaking since March 2011: http://www.nytimes.com/2013/07/11/world/asia/japanese -nuclear -plant-may-have-
been-leaking -for-two-years .html?_r=3&  cited in P. Kiger, "Fukushima's Radioactive Water Leak: What You 
Should Know", National Geographic News , 9 August 2013, ( National Geographic : Fukushima's Radioactive 
Water Leak: What You Should Know)  (Exhibit KOR -6). 
559 National Geographic : Fukushima's Radioactive Water Leak: What You Should Know,  (Exhibit KOR -6). 
560 National  Geographic : Fukushima's Radioactive Water Leak: What You Should Know,  (Exhibit KOR -6) 
(citing http://www.nature.com/news/ocean -still-suffering -from-fukushima -fallout -1.11823 .) 
561 Fukushima Daiichi NPS Prompt Report (Aug 05,2013) http://www.tepco.c o.jp/en/press/corp -
com/release/2013/1229511_5130.html  cited in National Geographi c: Fukushima's Radioactive Water Leak: 
What You Should Know,  (Exhibit KOR -6). 
562 National Geographic : Fukushima's Radioactive Water Leak: What You Should Know,  (Exhibit KOR -6). 
563 See R. Yoshida, "Tepco raises toxic water estimate to 400 tons a day", Japan Times  (27 Sept 2013),  
(Exhibit KOR -107); "Fukushima leak: Japan government 'to take measures'", BBC News , 8 August 2013, 
(Exhibit KOR -3); National Geographic : Fukushima's Radi oactive Water Leak: What You Should Know,  
(Exhibit  KOR-6). 
564 The Panel notes that the first post -FDNPP accident UNSCEAR Report was published in October 2014, 
however two scientific documents were discussed at the Committee's 60th session from 27 -31 May 201 3. The 
first document reported the results of an assessment of the levels and effects of radiation exposure due to the 
nuclear accident after the 2011 great east -Japan earthquake and tsunami. The Panel also notes that Korea was 
invited to become a Member o f the Committee in December 2011. 2013 UNSCE AR Report Annex A, 
(Exhibit  JPN-210), p. 2.  
565 Experts' responses to Panel question Nos. 12(b), 55 and 59 to the experts.  
566 Professor Anspaugh's response to Panel question No. 12(b) to the experts.  WT/DS495/R  
 
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  the importance of using measurements in foods and that models extrapolated from measured 
levels in the environment should only be used if measurement in food is not possible. Ms Brown 
also indicated that uncer tainty in the source term does not prevent reasonably supported scientific 
conclusions about the potential levels of contamination in food (fishery and agricultural) products 
from Japan.567 Dr Skuterud noted that because the total amount s of later releases w ere much 
smaller than the initial release, the uncertainties surrounding them are much smaller as well. He 
did not see how such uncertainties could prevent sound conclusions being reached about the 
potential levels of contamination in foods.568 
7.93.   The same can be said for Korea's arguments with respect to uncertainty about the amounts 
of radionuclides remaining in the reactor; uncertainty about environmental contamination levels in 
seawater, sediment, soil and air; if there was a significant new leak; the potent ial presence of 
caesium -rich microparticles  in soil; and radionuclide deposits in river catchments , marine 
estuaries, and coastal areas . The experts all indicated that such info rmation  is not critical  to an 
assess ment of  the risk to humans from consumption  of food containing radionuclides .569 Moreover, 
the Panel recalls that Korea's measures are not meant to protect either Koreans or Japanese from 
environmental exposure  to radionuclides, but rather to protect Korean consumers  from exposure 
to products contain ing levels of radionuclides in excess of Korea's appropriate level of protection as 
expressed through its established tolerance levels . Therefore, Korea's concerns are not directly 
related to Korea's ability to conduct a risk assessment for the risk being addressed  – exposure to 
radionuclides  through consumption of contaminated food . The experts confirmed unanimously that 
such environmental information is irrelevant t o a determination of the contamination levels in 
particular food products.570 The experts emp hasized the need to focus on the actual levels of 
radionuclides in fish and other food products which can be tested for using existing technology.571 
Korea seems to ac cept that this risk can be assessed as it applies the Codex guideline levels for all 
of the  radionuclides except caesium, for which it establishes its own maximum levels . Moreover, 
while Korea is correct that the ICRP and others recommend further studies o n the effects of 
exposure to low doses of radiation, the ICRP and others acknowledge that t his uncertainty does 
not prevent the conclusion of a risk assessment. Rather, the ICRP uses  the LNT model in making 
calculations for dose coefficients and intervent ion levels precisely  to account for this uncertainty .572 
                                                
567 Ms Brown's re sponse to Panel question No. 12 (a) -(b) to the experts. Professor Michel concurred that 
food-bans and recommendations on food consumptions should be based primarily on measured data for the 
food. Modelling should only be employed if still data are missing.  
568 Dr Skuterud's response to Panel question No. 12(b) to the experts. Dr Thompson concurred that any 
such uncertainty should not negatively impact the ability to draw reasonable science -based conclusions on the 
potential level of contamination in food (fis hery and agricultural products) from Japan. Dr Thompson also noted 
the detailed real -time seawater monitoring program at the mouth of Fukushima Dai -ichi port would quickly 
alert authorities of any significant release of radionuclides to the sea. See also e xperts' response s to Panel 
question No.  55 to the experts.  
569 See experts' responses to Panel question Nos. 13 to the experts (status of the damaged core and the 
remaining fuel); No. 15 (uncertainty about environmental contamination levels in seawater, sedi ment, soil, and 
air); No. 16 (if there were a significant new leak); Nos. 4, 5, 6 and 17 (Caesium -rich microparticles); No. 18 
(radionuclide deposits in river catchments, marine estuaries, and coastal areas). See also Expert Meeting 
Transcript, para. 3.170 .   
570 See e.g. Dr Thompson's response to Panel question No. 15 to the experts "The dynamic nature of the 
marine environment means it cannot necessarily be assumed that fishery products are from the same location 
as environmental samples and focus should be  on measurements in the products or g roups of similar 
products."; Ms  Brown's response to Panel question No. 91 to the experts "Levels in the environment can be 
used to predict activity concentrations in food but the focus should be on measuring the concent rations of 
radionuclides in foods where possible."; Dr Skuterud's response to Panel question No. 91 to the experts "in the 
current situation, where large numbers of samples have been analysed, and contamination levels in food 
products have been and still a re determined by direct measurements, the amounts released have little 
relevance."  
571 Professor Anspaugh noted that "[t]he best, and direct, method is to simply measure the 
concentrations in food products at issue." Professor Anspaugh's response to Panel qu estion No. 15 to the 
experts. See also Professor Michel's response to Panel question No. 15 to the experts "[t]he environmental 
radioactivity data allow deciding in which regions surveillance of the radioactivity in food has to be performed. 
In the end, al ways the data measured in the foodstuffs decide." See also Dr Thompson's response to Panel 
question No. 33 to the experts "As indicated in response to questions 12 and 13, at this time the most 
appropriate method of determining fishery product contaminatio n is through measurements, as is being done 
by the Japanese authorities."  
572 ICRP Publication 103: 2007 Recommendations, (Exhibit KOR -1), (Exhibit ICRP -3), p. 58.  WT/DS495/R  
 
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  7.94.   We understand Korea's reference to t he relationship between caesium and other 
radionuclides to refer to the issue of whether there is a particular ratio between caesium and other 
radionuclides that can  justify the adoption of a measure that tests only for caesium.  The experts 
once again stat ed that this was irrelevant to an ability to conduct a risk assessment.573 The ratio 
between the radionuclides might be relevant for determining whether a particular m easure (e.g. 
the alternative measure proposed by Japan in its claim under Article 5.6) achi eves Korea's  ALOP. 
7.95.   Korea also refers to insufficiency in scientific evidence that is not related to existing  
contamination, but about potential future contamination.  For example, Korea argues that  the 
evidence is insufficient with respect to the types , amount and status of radionuclides remaining in 
the FDNPP and the likelihood of future releases of radioactive materials into the ocean. Korea  is 
correct that it is unknown  whether another accident could happen at the FDNPP that would release 
even more radioa ctive contamination into the environment – on land or w ater – and in what 
amounts and combinations . The Panel is sensitive to Korea's fear that an additional accident could 
increase the levels of radionuclides contaminating food products in international c ommerce.  We 
recall the detailed, frequent, and public s eawater monitoring data that is available around the 
FDNPP  port in addition to the publicly available food monitoring data and ERD data. It would be 
expected that any significant new leak would be dete cted quickly and enable Japanese and Korean 
authorities  to respond appropriately.574 Moreover, such a risk is not limited to Fukushima Dai -ichi, 
but may happen to any nuclear power plant  at any time . This is precisely the kind of inherent and 
permanent uncer tainty that Article 5.7 was not meant to address. The P anel notes that if another 
incident were to occur, Korea would be within its rights, to re -evaluate the sanitary risk posed by 
food products affected by that incident and impose appropriate SPS measure s.  
7.96.   Therefore, the Panel concludes that there was not i nsufficient scientific evidence to conduct 
a risk assessment with respect to the product specific import bans, the blanket import ban, and 
the extension of the additional testing requirements to fisher y and livestock products in 2013 .  
7.97.   As regards the secon d requirement, Korea argues that its measures were based on available 
pertinent information, including information about the release of c aesium, iodine and strontium 
following the Fukushima Dai -ichi nu clear power plant accident, limited information about t he levels 
of different radionuclides in the environment around Fukushima and in the ocean off Japan, 
information about the leaks of radioactive material after the accident, limited information about 
the effects of low dose radiation, and available Codex an d other international standards and 
guidelines.575 For its part, Japan argues that Korea has merely listed a variety of information, but 
has failed to provide it to the panel and to explain how its measu re is based on that information.576 
7.98.   The Panel notes that Korea's 2011 additional testing requirements and the product -specific 
bans were adopted shortly after the FDNPP accident and mirrored closely Japan's own measures . 
The same can be said for the lowering  of the maximum level for caesium to 100 Bq/kg.  The Panel 
also recalls that for the  other  radionuclides Korea uses the guideline levels those set forth in the  
Codex Standard.  Therefore, the Panel finds that the 2011 additional testing requirements and the 
product -specific bans  were adopted based on availab le pertinent information .  
7.99.   With respect to the blanket import ban and the additional testing requirements adopted in 
September 2013, Korea refers to a variety of information it claims serves as the basis f or its 
measures  including estimates of releases of caesium, iodine, strontium and other radionuclides 
during the FDNPP accident; studies and information on the levels of the radionuclides in the area 
around the FDNPP and in the ocean off of Japan; limited studies on radionuclides in the seabed off 
Japan; d ata regarding caesium and strontium levels in Japanese agricultural and fisheries 
products; information about the leaks that have occurred at the FDNPP and the risk of future 
leaks; public information on T EPCO's lack of success in preventing further leaks;  articles on the 
need for further study on low dose radiation; and the Codex Standard .  
7.100.   The obligation in Article 5.7 is to base measures on available pertinent information. 
Therefore, a mere listing of do cuments is not enough , rather a  Member must demonst rate that the 
available pertinent information served as the basis for its measure . The Appellate Body has 
                                                
573 See experts' responses to Panel question No. 12 (a) and (b) to the experts.  
574 Experts' respo nses to Panel question No. 59 to the experts.  
575 Korea's response to Panel question No. 106(b).  
576 Japan's second written submission, para. 64.  WT/DS495/R  
 
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  explained that "[a] thing is commonly said to be 'based on' another thing when the former 'stands' 
or is 'founded' or 'built' upon or 'is supported by ' the latter."577 The measures themselves refer 
only to the  (i) the growing public concern regarding hundreds of tons of contaminated water being 
discharged from the Fukushima nuclear plant to the ocean ever y day; (ii) uncertainties pertaining 
to how the sit uation in Japan will evolve; and (iii) the difficulties in clearly predicting future 
developments based only on data provided by the Japanese government thus far.578 Moreover, a 
Q&A document on Radioactivity  Safety Management of Fishery Products Imported fro m Japan 
published at the same time does not refer to any of the information Korea argues serves as the 
basis for its measures, other than the Codex Standard.579 The Codex Standard does not call for the 
elimination of all trade or for the imposition of import bans, but rather for the establishment of 
intervention levels below which food can be safely traded. Something cannot serve as the basis for 
something else i f the two are contradictory.580 Therefore, at lea st with respect to the blanket 
import ban the Panel  cannot conclude that the Codex Standard serves as a basis for the measure. 
With respect to the additional testing requirements, the only reference to the Cod ex Standard  in 
the measure itself is to the red uction in the Korean acceptable level for caesium to less than 1/10 
guideline level approved by Codex . We do note that in the administrative instructions sent to 
implementing agencies reference is made to the Codex  guideline  levels for the other radionucli des, 
but Korea has not demonstrated how these levels form a foundation for its requirement for 
additional testing if more than 0.5 Bq/kg of caesium or iodine is detected . Moreover, public 
concern, uncertaintie s, and the inability to predict the future are  not, in our view, the type of 
available pertinent information  contemplated under Article 5.7, which focuses on basing the 
measure on science.  
7.101.   With respect to the final two requirements that the importing Member seek additional 
information and review the me asure within a reasonable period of time, the Appellate Body 
clarified  that these two conditions "relate to the maintenance  of a provisional S PS measure and 
highlight the provisional  nature of measures adopted pursuant to Article 5.7."581 Although 
Article  5.7 does not impose explicit prerequisites regarding the additional information to be 
collected or a specific collection procedure582, the Appella te Body concluded that:  
The WTO Member adopting a provisional SPS measure should be able to identify the 
insuffici encies in the relevant scientific evidence, and the steps that it intends to take 
to obtain the additional information that will be necessary to address these 
deficiencies in order to make a more objective assessment and review the provisional 
measure with in a reasonable period of time. The additional information to be collected 
must be "germane" to conducting the assessment of the specific risk .583 A Member is 
required under Article 5.7 to seek to obtain additional information but is not expected 
to guarante e specific results. Nor is it expected to predict the actual results of its 
efforts to collect additional information at the time when it adop ts the SPS measure. 
Finally, the Member taking the provisional SPS measure must review it within a 
reasonable peri od of time.584 585 
7.102.   With respect to the "reasonable period of time" the Appellate Body considered in Japan – 
Agricultural Products II  that this mus t be established on a case -by-case basis and depends on the 
specific circumstances of each case, including the dif ficulty of obtaining the additional information 
necessary  for the review and the characteristics  of the provisional SPS measure.586 The panel in EC 
– Approval and Marketing of Biotech Products  interpreted the term "reasonable period of time" in 
                                                
577 Appellate Body Report, EC – Hormones, para. 163 (interpreting the term "based on" in Article 3.1 of 
the SPS Agreement).  
578 PMO Blanket Import Ban and Additional Testing Requirements Press Release,  (Exhibit JPN -3.b). 
579 Korea's OGPC, MFDS, MOF, NSSC, "Q&A on Radioactivity Safety Management of Fishery Products 
Imported from Japan" (September 2013), (Exhibit JPN -4.b). 
580 Appellate Body Report, EC – Sardines , para. 248.  
581 Appellate Body Report, Japan  – Apples , fn. 318 to para. 176. (emphasis original)  
582 Appellate Body Report Japan – Agricultural  Products II , para. 92.  
583 (footnote original) Ibid. 
584 (footnote original) "[W]ha t constitutes a 'reasonable period of time' ... depends on the specific 
circumstances of each case, including the difficulty of obtaining additional information necessary for the review 
and the characteristics of the provisional SPS measure ." (Ibid. para. 93). 
585 Appellate Body Report,  US/Canada – Continued Suspension, para. 679.  
586 Appellate Body Report, Japan – Agricultural Products II , para. 93.  WT/DS495/R  
 
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  Article 5.7 i n a manner similar to the term "undue delay" in Annex C(1)(a).587 The panel US – 
Animals  followed this approach and concluded that a reasonable period of time would mean as 
quickly as legally possible while accepting legitimate reasons for delay.588  
7.103.   Japan arg ues that Korea has not been proactive in either seeking to obtain new 
information or in reviewin g such information. With regard to the requirement to seek to obtain 
additional information, Japan submits that, with the exception of the activities of the Kor ean 
/Civilian Expert Group,  Korea has "essentially ceased trying to obtain and review additional  
information" since imposing the last of the measures at issue.589 Additionally, Japan argues that 
Korea has failed to disclose the risk assessment prepared by th e Korean /Civilian Expert  Group, 
which according to Japan would demonstrate that the available ev idence does not support Korea's 
measures.590 Japan submits that, instead of seeking out and reviewing new information by itself, 
Korea is seeking to block the Pan el's assessment of available information.591 
7.104.   Regarding the requirement that Members continuous ly review their provisional 
SPS measures, Japan argues that Korea scheduled in February 2014 a plan for review of its 
measures within 14 -18 weeks but has not yet co nducted such a review.592 The Panel asked Korea 
whether it had reviewed its measures since they we re adopted and to specifically address whether 
the steps described in the February 2014 plan  were undertaken and completed.593 Korea 
responded that every step had  been completed except the last – preparing for the final re -
assessment report. Korea provides n o explanation as to why this last step was not completed 
other than to recall that "Japan has not pursued a claim under Article 5.7. In the absence of a 
claim u nder Article 5.7, Korea 's SPS measures must be presumed to be in compliance with all of 
the requ irements of that provision."594 
7.105.   Korea argues that it has been continuously reviewing its measures since 2011, but that its 
efforts are hampered by the constantly evolving nature of the situation at the FDNPP and new 
information.595 Korea states that it  sought information from Japan  on numerous occasions .596 In a 
press release from September 2014  MFDS  refers to commencing the review of the 2013 measures 
as it was one ye ar since the imposition of those measures.597 Korea also submits a diary of the 
activities undertaken by its government with the aim of obtaining additional information to conduct 
a more objective assessment of the risks that does contain events going back t o 2011.598 In 
particular, Korea notes in the list of activities that Japan respo nded to specific requests for 
information in August and December 2011. Korea also notes several meetings between Korean 
and Japanese authorities, although most relate to Korea ex plaining its measures to Japanese 
emissaries rather than Korea seeking informa tion from them. Korea also notes that it held a 
Korea -Japan working group meeting on radiation safety in June 2012. A report of a meeting of an 
Intergovernmental Meeting on Radia tion Safety Management for Japanese Food Imports from 
February 2014 also menti ons a written response from Japan having been received in January 
2014.599 MFDS issued a press release in September 2014 indicating that it had received materials 
from Japan in rel ation to the leakage of contaminated water as well as additional materials on 33 
items in seven areas.600 Korea disclosed this information on the MFDS website. Korea also 
                                                
587 Panel Report s, EC – Approval and Marketing of Biotech Products , paras. 7.1495 -7.1497 (concerni ng 
Annex C(1)(a) ) and para. 7.3245 (concerning Article 5.7).  
588 Panel Report, US – Animals , para. 7.301.  
589 Japan's second written submission, para. 65.  
590 Japan's second written submission, para. 66.  
591 Japan's response to Panel question No. 108.  
592 Japan's second written sub mission, para. 67 (referring to Exhibit KOR -172).  
593 Panel question No. 151.  
594 Korea's response to Panel question No. 151.  
595 Korea's first written submission, para. 84.  
596 See Korea's first written submission, paras. 67 -71. Although  Japan responded to Korea' s requests 
and in its view provided all relevant information, Korea did not consider the responses sufficient.  
597 Korea's Ministry of Food and Drug Safety, Press Release, "Disclosure of the Japanese Replies 
Regarding Japanese Fishe ry Products and Opinion Ga thering" (15 September 2014), (Exhibit JPN -62.b).  
598 Korea's response to Panel question No. 106(c) (citing Diary of Radiological Food Safety Activity,  
(Exhibit KOR -171)).  The Panel notes that the review plan from February 2014 is not listed on this diary.  
599 Intergovernmental Meeting on Radiation Safety Management for Japa nese Food Imports, 
February  17, 2014, Policy Coordination Office for Employment, Ministry of Foo d and Drug Safety. 
(Exhibit  KOR-172).  
600 Korea's Ministry of Food an d Drug Safety, Press Relea se, "Disclosure of the Japanese Replies 
Regarding Japanese Fishery Products and Opinion Gathering" (15 September 2014), (Exhibit JPN -62.b).  WT/DS495/R  
 
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  announced the formation of a private -sector led expert committee to analyse the materia ls 
provided by Japan, the opinions of the public, and if necessary conduct fie ld inspections in Japan 
and Japan -Korea expert meetings. For the period from September 2014 to May 2015 all but one of 
the entries in Korea's diary  relate to the activities of this Korean/ Civilian Expert Group and lists 
MFDS as the managing department . However, Korea argued  before this Panel that : 
The Civilian Expert Group did not represent the Korean Government, was not funded 
by the Korean Government, and did not have a legal ba sis under Korean law regarding 
its establishment. The Civilian Expert Group wa s formed as an ad hoc  group of 
scholars, radiation specialists, nuclear experts, medical doctors, and members of 
NGOs. As such, the Korean Government never participated in the ac tivities of the 
Civilian Expert Group.601 
7.106.   In light of Korea's clarification of t he role of this Korean/Civilian Expert Group the Panel 
cannot conclude that this group's activities were part of the formal review of the measure within 
the meaning of Article 5. 7. The one entry on the diary during this time -period not related to the 
Korea n/Civilian Expert Group is "meeting regarding the special interim measures on Japanese 
fishery products." In the Panel's  view,  Korea has not presented sufficient evidence of act ivities to 
constitute  review of the measure since September 2014  within the m eaning of Article 5.7 . Even if 
the Panel were to accept that the Korean/ Civilian Expert Group's activities somehow constituted a  
review of the measure on the part of the Governme nt of Korea, Korea also explained that "[t]he 
Civilian Expert Group voluntaril y suspended its activities in June 2015 after Japan requested 
consultations with Korea for this dispute."602 
7.107.   The record evidence demonstrates that Korea did seek additional informa tion from Japan 
as well as regularly accessed the publicly available data.603 The evidence also shows that Korea 
announced the beginning of a review of the 2013 measure s in 2014. However, such review has not 
been concluded.  There is no evidence on the record  of specific activity undertaken by the Korean 
Government related to the re view since September 2014. Moreover, Korea has provided no  
legitimate  justification for the suspension of this review.604 Therefore, the Panel finds that Korea 
did not review the meas ures within a reasonable period of time .  
7.108.   After careful analysis, the Panel  finds that while there was an insufficiency of scientific 
evidence with respect to the 2011 additional testing requirements, this was not the case for the 
product -specific bans, th e blanket import ban, or the 2013 additional testing requirements.  
Although  there is an uncertainty with respect to  the potential for  future nuclear accidents  at the 
FDNPP or elsewhere  this uncertainty does not relate to the science  necessary to assess the  risks 
associated with the consumption of contaminated food , but rather to the inherent uncertainty of 
life. The Panel notes that even if the Panel finds in favour of Japan, if another accident were to 
happen and contamination of food products were to incr ease, nothing in this report would prevent 
Korea from imposing new measures  to ensure that its limits for radionuclides were enforced.  
7.109.   The Panel also finds that Korea has based its 2011 additional testing requirements and 
product -specific bans on available  pertinent information . However , this was not the case for the 
blanket impo rt ban and the 2013 additional testing requirements.   
7.110.    Korea did  seek out additional information from Japan.  However, Korea did  not review the 
measures within a reasonable period of  time. 
7.111.   In sum , Korea has failed to establish that there was insufficient scientific evidence with 
respect to the product -specific bans, the blanket import ban, or the 2013 additional testing 
requirements. Korea  has not demonstrated that it based the blanke t import ban or the 2013 
additional testing requirements on available pertinent information. Moreover, it has failed to review 
any of its measures within a reasonable period o f time. As none of the measures  fulfils  all four 
                                                
601 Korea's response to Panel question No. 11.  
602 Korea's response to Panel question No. 11.  
603 Korea's Ministry of Food  and Drug Safety, Press Release, "Disclosure of the Japanese Replies 
Regarding Japanese Fishery Products and Opinion Gathering" (15 September 2014), (Exhibit JPN -62.b) and 
Diary of Radiological Food Safety Activities,  (Exhibit KOR -171).  
604 The onset of cons ultations under the DSU cannot serve as a justified reason for delaying compliance 
with the relevant obligations.  WT/DS495/R  
 
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  cumulative elements of Article 5 .7, the Panel  finds that Korea's measure s do not fall within the 
scope  of Article 5.7.  
7.112.   As Korea's measures do not fall within the scope of Article 5.7, the Panel will not make any 
assumptions about the  relationship between their provisional nature and the ir consistenc y with the 
provisions of the SPS Agreement raised by Japan . That being said, the Panel is mindful that the 
nature, scope, and quality of scientific evidence is particularly relevant in this case for determining 
whether the constituent elements  of Japan's c laims under Articles 2.3, 5.6, and 8 (Annex C) have 
been demonstrated. The Panel will carefully consider both parties' arguments on whether the 
scientific evidence adduced is sufficient to prove Japan's claims.   
7.7  Whether Korea's measures are mo re trade -restrictive than required  
7.113.   Article  5 of the SPS Agreement contains three subparagraphs relating to a Member's 
appropriate level of protection (ALOP): subparagraphs 4, 5 and 6. In this dispute, Japan only 
makes claims under Article 5.6.  
7.114.   Article 5.6 concerns the relationship between the measures applied and the achievement of 
the ALOP and provides that:  
Without prejudice to paragraph  2 of Article  3, when 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, taking into account technical and economic feasibility.3 
____________ ____ 
 3 For purposes of paragraph  6 of Article  5, a measure is not more trade -restrictive than required 
unless there is another measure, reasonably available taking into account technical and economic 
feasibility, that achieves the appropriate  level of sanitary or phytosanitary protection and is significantly 
less restrictive to trade.  
7.115.   Annex  A(5) of the SPS  Agreement defines the "appropriate level of sanitary or 
phytosanitary protection" ("ALOP") as:  
The level of protection deemed appropriate by the Member establishing a sanitary or 
phytosanitary measure to protect human, animal or plan t life or health within its 
territory.  
NOTE: Many Members otherwise refer to this concept as the "acceptable level of risk".  
7.116.   In Australia – Salmon , both the pane l and the Appellate Body confirmed that footnote 3  to 
Article  5.6 provides a three -pronged test  to establish a violation of Article  5.6. Specifically:  
[T]he three elements of this test under Article  5.6 are that there is another 
SPS measure which:  
(1) is reasonably available taking into account technical and economic feasibility;  
(2) achieves the Me mber's appropriate level of sanitary or phytosanitary protection; 
and 
(3) is significantly less restrictive to trade than the SPS  measure contested.605 
7.117.   These three  elements are cumulative in the sense that, to establish inconsistency with 
Article  5.6, the co mplainant must demonstrate that there is an alternative measure that  fulfils all 
three requirements.  Thus, if there is no alternative measure reasonably availab le, taking into 
account technical and economic feasibility, or if the alternative measure does not achieve the 
                                                
605 Appellate Body Report, Australia – Salmon , para.  194 (upholding the Panel's reasoning).  WT/DS495/R  
 
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  Member's appropriate level of sanitary or phytosanitary protection, or if it is not significantly less 
trade -restrictive, the complainant will no t have established an inconsistency with Article  5.6.606  
7.118.   As these three elements are cumulative , they may be addressed in any order. In most 
prior SPS disputes, the main point of contention between the parties has been whether the 
measure achieves the ALOP and prior panels have begun their analysis by looking at this element . 
The Panel notes that if an alternative measure is not technically and economically feasible or 
significantly less trade restrictive, a comprehensive assessment of the alternative's abil ity to 
achieve the importing Member's ALOP may not be necessary. In the present dispute, Korea argues 
that, for the additional testing requirements, the alternative measure proposed by Japan is not 
significantly less trade restrictive than the current regi me. Therefore, the Panel  will address the 
first and third elements before moving on, if necessa ry, to whether Japan's alternative achieves 
Korea's ALOP.  
7.119.   With respect to the second element of the test, the Appellate Body explained in Australia – 
Apples  that a panel must identify both the level of protection that the importing Member has set as 
its appropriate level and the level of protection that would be achieved by the alternative measure 
put forth by the complainant.607 After identifying these two element s, the panel will then compare 
them.608 It is only if the level of protection achieved by the alt ernative measure meets or exceeds 
the Member's appropriate level of protection that the second element is fulfilled.609 Therefore, in 
its analysis of the second el ement the Panel must (i) identify Korea's ALOP610; then (ii) identify the 
level of protection tha t would be achieved by Japan's alternative; and finally (iii) compare the level 
of protection achieved by Japan's alternative measure and Korea's level of protec tion.  
7.120.   Japan proposes a single alternative measure that it argues can achieve Korea's ALOP with  
respect to the challenged measures that Korea is currently imposing on all products. Japan 
proposes testing for caesium, to verify that the products ' caesium co ntent does not exceed Korea 's 
level of 100 Bq/kg, as a means to control both caesium contaminat ion and contamination from 
additional radionuclides.611 Japan submits that in light of the absolute levels of radionuclides 
released in the initial accident and th ereafter; information on the ratios between the additional 
radionuclides and caesium; and the e vidence of actual concentrations available from testing for 
both caesium and the additional radionuclides in the environment and in food products, that 
testing f or caesium alone would be sufficient to ensure that Korean 's exposure to radionuclides 
through the consumption of food would be below 1 mSv/year so long as caesium levels in 
Japanese imports were below 100 Bq/kg.612 In particular, based on the reasoning and assumptions 
set forth in exhibits JPN -11 and JPN -148 as well as the data contained in exhibits JPN -11, JPN -148, 
JPN-238, JPN239, and others, Japan has calculated that applying this limit to imports would result 
in an estimated maximum exposure dose of 0.8 mSv/year (0.94 mSv/year in the worst case 
scenario).613  
7.121.   The Panel will pro ceed to examine whether Japan has adduced sufficient evidence to prove 
that its proposed alternative measure fulfils the three requir ements in footnote 3 of the 
SPS Agreement. Before moving on to the substance, the Panel will address two issues Korea raise s 
with respect to Japan's claim under Article 5.6. First, whether Japan has put forward "another 
measure" within the meaning of footnote 3. Second, the Panel will address whether ther e is any 
temporal limitation on the evidence Japan can rely upon in suppo rt of its claim that its alternative 
measure achieves Korea's ALOP.  
                                                
606 Appellate Body Report, Japan – Agricultural Produc ts II, para.  126. 
607 (footnote  original) Appellate Body Report, Australia – Salmon , para.  208. 
608 Appellate Body Report, Australia – Apples , para.  344. 
609 Appellate Body Report, Australia – Apples , paras.  344 and 368.  
610 Appellate Body Report, Australia – Apples, para. 344 (citing  Appellate Body Report, Australia – 
Salmon , para. 208).  
611 Japan's first written submission, paras. 334 and 450.  
612 Japan's first written submission, para. 334.  
613 Japan's second written submission, paras. 239 -241. WT/DS495/R  
 
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  7.7.1   Whether testing for caesium with a 100 Bq/kg limit is "another measure"  
7.122.   In its second written submission, Korea arg ues that because caesium testing is already 
required for imports of Japan ese food products it does not constitute "another measure" within the 
meaning of Article 5.6 , because Korea already conducts caesium testing.614  
7.123.   Japan is challenging two types of  measu res applied by Korea : the import ban s and the 
additional testing requirem ents on fishery and non-fishery products.615 Japan has proposed that 
testing only for caesium and rejecting any food products with caesium levels over 100 Bq/kg would 
be the alternative  measure for both types of challenged measures.  
7.124.   For the import ban s, Kore a's argument is unavailing. No testing at all is taking place as no 
importation is allowed. Therefore, Japan's proposal is a n  alternative to the current situation.  
7.125.   With respect to th e additional testing requirements, Japan is conceding that both p re-
expor t and at -the-border caesium testing will continue, but what it is arguing for is the complete 
removal of the additional  testing so long as the caesium detected is lower than Korea's t olerance 
level of 100 Bq/kg. One round of testing  (at 100 Bq/kg) is a qua litatively distinct measure than 
two rounds of testing  (one for 0.5 Bq/kg of caesium and i odine and another for additional 
radionuclides) . Moreover, the level of the caesium detected  that triggers the additional testing and 
the one in Japan's propos al are significantly different.  
7.126.   Korea's interpretation of the term "another measure" to mean that the alternative measure 
cannot have any elements in common with the original measure is over ly narrow . Prior panels 
have relied on the fact that a regulating Member already imposes the requirements that constitute 
the alternative measure as evidence in support of a conclusion that the measure is reasonably 
available under the three -prong test in Article 5.6.616 These findings contradict Korea's position. 
Korea finds sup port in the panel report in Brazil – Retreaded Tyres , where the panel concluded 
that the alternative measures identified by the complainant "do not constitute alternatives that 
could apply as a substitute for [the challenged measures] to achieve its goal . . . to the maximum 
extent possible. Rather, they would appear to be complementary measures that Brazil in fact 
already applies, at least in part."617 Korea notes that this finding was upheld on appeal. Korea 
misinterprets the finding of the panel. The Panel does not understand the conclusion of th at panel 
to mean  that any regulatory measure that might already be applied in some form could not serve 
as an alternative measure. Rather, the  issue in Brazil – Retreaded Tyres was whether the proposed 
alterna tive could by itself substitute  for the challenged measures and nevertheless achieve the 
goal of the measure to its maximum extent.  
7.127.   In this dispute, Japan is precisely arguing that caesium  testing with a limit of 100 Bq/kg, a 
procedure that Korea already imposes, can substitute for the existing regime of a combination of 
caesium  and iodine  testing for trace amounts (more than 0.5 Bq/kg) and additional testing for the 
additional  radionuclide s. Thus, if Japan's proposal can substitute for Korea's current reg ime and 
fulfil the three requirements in footnote 3 then it will be "another measure" within the meaning of 
Article 5.6 of the SPS Agreement. In this sense, a measure cannot be rejected a priori because it 
contains some elements of the original measure, bu t only after a full evaluation of all the factors in 
footnote 3 and Article 5.6.  
7.128.   Table 11, below, compares the existing measures with Japan's proposed alternative.  
                                                
614 Korea's second writte n submission, paras. 270 -279. 
615 We note that Japan is not challenging other product -specific bans currently maintained by Korea. 
However, if Korea were to lift the bans, the additional testing requirements, which appl y to all non -banned 
products, would app ly. 
616 Panel Report, India – Agricultural Products , para. 7.541. See also Panel Report, Japan – Apples  
(Article 21.5 – US), para. 8.187.  
617 Panel Report, Brazil – Retreaded Tyres, para. 7.172.  WT/DS495/R  
 
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  Table 11: Comparison of t he existing measures and Japan's proposed alternative  
Existing Meas ures Japan's Alternative  
Import ban for 28 fishery products from 8 prefectures  Caesium and iodine testing of all consignments with a 
tolerance of 100 Bq/kg  
• Pre-export caesium and iodine t esting for 
food products from 13 prefectures and 
fishery products from 8 prefectures  
• Caesium  and iodine  testing of randomly 
selected samples from all consignments;  
• if the sample exceeds 0.5 Bq/kg of caesium 
or iodine,  additional testing for at least  
strontium and plutonium  • Pre-export caesium and iodine testing for 
food products from 13 prefectures and 
fishery products from 8 prefectures  
• Caesium and iodine testing of all 
consignments with a tolerance of 100 Bq/kg  
 
7.7.2   The temporal scope of Japan's claims  
7.129.    Japan has raised claims with respect to the consiste ncy of Korea's measures with 
Articles  2.3 and 5.6 both for the adoption and the maintenance of the measures. In support of its 
claims, Japan has presented scientific studies that analyse Japanese sampling da ta for various food 
products.618 Japan's exhibits a ccompanying its first written submission contain data up through the 
filing of its first written submission in March 2016. Japan later supplemented this information with 
even more recent sampling data.619 
7.130.   Korea argues that evidence relating to the levels of radionuclides in Japanese food 
products after the date of establishment of the Panel should not be considered.620 Korea contends 
that "the breach of the relevant WTO provision must have mate rialized at the tim e the Panel was 
established".621 Korea argues that,  as a result, the Panel would overstep its mandate and act 
inconsistently with Article 11 of the DSU, if it were to consider information taking  into account 
developments after its establishment.622 Korea furth er points to a number of cases, in which 
panels h ave limited their assessment of the inconsistency of the challenged measures to the 
factual situation in existence at the time of the panel's establishment.623 
7.131.   Japan, for its part, submits that because its cla ims relate to the continuing obligations in 
Articles 2.3 and 5.6 the Panel must take into account the most up -to-date evidence available to 
determine whether, in light of the latest facts, Korea is presently complying with its obligations.624 
Japan finds sup port for its view in the requirement in Article 3 .3 of the DSU that disputes be 
settled promptly. In particular, Japan argues that considering the most up -to-date evidence:  
[P]romotes the prompt resolution of a dispute, by providing an up -to-date assessmen t 
of consistency.  If a panel fails to consider t he most recent evidence, such dispute 
may be prolonged because of disagreement whether, in view of the most recent 
evidence, a measure is WTO -consistent.  A complainant might be compelled to bring a 
                                                
618 See Analysis of caesium and additional radionuclides in food pr oducts from Japan and the rest of the 
world, (Exhibit JPN -11) and Japan's scientific response to Korea's arguments in its first written submission, 
(Exhibit JPN -148).  
619 See Japan's Ministry of Agriculture, Forestry an d Fisheries, "Inspection Results for Ra dioactive 
Strontium in Fishery Products"(April 2011 -December 2016) (This is an updated version of Exhibit JPN -127) 
Japanese original available at: http://www.jfa.maff.go.jp/j/housyanou/pdf/strontium_7.pdf, (Exhibit JP N-238), 
and TEPCO Within 20 km of FDNPP  Data (April 2012 - May 2016), (Exhibit JPN -239).  
620 Korea's opening statement at the second meeting of the Panel, paras. 20 -21. 
621 Korea's response to Panel question No. 115.  
622 Korea's response to Panel question No. 115; comments on Japan's  response to Panel  question 
No. 115. 
623 Korea's response to Panel question No. 115; comments on Japan's  response to Panel question 
No. 115. 
624 Japan's opening statement at the second meeting of the Panel, paras. 14 -17; response to Pan el 
question No. 115.  WT/DS495/R  
 
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  second d ispute to address evidence that was available dur ing a first dispute, and that 
shows inconsistency.  Or, a respondent might be forced into compliance proceedings 
to address evidence that was available during original proceedings, and that shows 
consistency .625 
7.132.    In that regard, Japan also refers to the obli gations in Article 3.4 of the DSU, which 
requires the DSB 's recommendations and ruling s to "be aimed at achieving a satisfactory 
settlement of the matter " and Article 3.7 of the DSU, which states that the ob jective of dispute 
settlement is "to secure a positive solution to a dispute".626 To illustrate its point Japan refers to 
several pieces of post -establishment evidence that Korea raises in its own defence – namely 
subsequent leak events and change s to Korea' s regulatory treatment of domestic products.627 
Finally, Japan argues that considering post -establishment evidence would not extend the Panel's 
mandate beyond its terms of reference.628  
7.133.   Korea contends that allowing panels to take account of post-establishment  developments 
would "convert WTO dispute settlement proceedings into a moving target" by the complainant with 
the view of prolonging the proceedings "until such time as it manages to establish that the breach 
has materialized" .629 According  to Korea, this is  the kind of practice that Japan has engaged in by 
prematurely initiating the case and subsequently largely relying on post -establishment evidence.630 
Moreover, Korea argues that Japan's interpretation of Articles 3.3, 3.4 , and 3.7 of the D SU is 
flawed and u nduly favours the complaining party in the WTO dispute settlement system.631 
7.134.   As mentioned in section 7.1 above, the Panel is of the view that it can consider evidence 
that was developed subsequent to its establish ment. However, a separate question, which is 
illuminated by the parties' arguments, is whether the Panel's analysis of consistency with 
continuing obligations must focus on th e factual situation in existence at the time of establishment 
of the Panel or whe ther the Panel should consider the factual situation post -establishment.  
7.135.   Japan argues that Articles 2.3 and 5.6 contain continuing obligations similar to those that 
have been found in other provisions of the SPS Agreement. We agree with Japan. The basic 
obligations of the SPS Agreement, set forth in Article 2 , refer to the adoption and maintenance of 
SPS measures , use the present tense , and do not contain an express limitation on their temporal 
scope. 632 Similarly, the more specific obligations, such as Arti cles 5.1 and 6.1 have been found to 
require Members to adapt their measures to new scientific information on an on -going basis.633 
Moreover, Article 5.7 specifically contemplate s Members assessing and reviewing measures to 
change their basis from a provision al nature to one based on a risk assessment.634  The Panel  finds 
similar language, context, and object and purpose in Articles 2.3 and 5.6. Therefore, the Panel  
understand s these obligations to apply not only when the measures are adopted, but throughout 
the time they remain in force.   
7.136.   As the Panel is faced with claims relating to continuing obligations, it must consider at 
what point in time to examine the factual situation whe n determining the consistency of Korea's 
measures with the relevant obligations. Japan argues that the Panel should consider  the WTO -
consistency of the challenged measure based on  evidence of the most up -to-date factual situation  
including  evidence speaking to the factual situation post -dating establishment  of the Panel. In 
support of its arguments, Japan cites a variety of panel reports under several  covered agreements 
                                                
625 Japan's opening sta tement at the second meeting of the Panel, para. 22.  
626 Japan's opening statement at the second meeting of the Panel, para. 22; response to Panel question 
No. 115.  
627 Japan's opening statement at the second meeting o f the Panel, para. 22; response to Panel q uestion 
No. 115.  
628 Japan's comments on Korea's response to Panel question No. 115.  
629 Korea's response to Panel question No. 115.  
630 Korea's opening statement at the second meeting of the Panel, paras. 14 -15; comment s on Japan's 
response to Panel question No . 115.  
631 Korea's comments on Japan's response to Panel question No. 115.  
632 See Appellate Body Report, India – Agricultural Products , para. 5.132.  
633 Panel Report s, EC – Approval and Marketing of Biotech Products , paras. 7.3031 -7.3032; Russia – 
Pigs (EU) , para. 7.1014 ; and US – Animals, para. 7.339.  
634 Panel Report, US – Animals, paras. 7.294 -7.296.  WT/DS495/R  
 
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  where it ar gues the panels considered the  WTO-consistency of a measure based on the  factual 
situation existing after they were established.635  
7.137.   Several panels have express ly dealt with this question in the SPS context and have 
decided to limit their evaluation to the f actual situation in existence at the time of the 
establishment of the panel. With respect to the continuing obligation to base a measure on a risk 
assessment,  the panel in EC – Approval and Marketing of Biotech Products  found that faced with a 
claim agains t maintenance of measures, a panel has to assess whether the challenged measures 
comply with the requirements of the SPS Agreement as of the date of the panel  establishment.636 
The panels in India – Agricultural Products,  US – Animals, and Russia – Pigs (EU)  followed a similar 
approach with respect to the harmonization obligation, considering that the version of the OIE 
Terrestrial Code in force at the time of pa nel establishment was the one relevant to the 
assessment of consistency with Article 3.1.637 Moreove r, the panel in US – Animals , applied a 
similar temporal limitation to its analysis when examining claims regarding undue delay and under 
Article 5.6.638 Japan takes issue with the reasoning of these panels, arguing that it is erroneous 
and unsupported by th e text of the covered agreements. In Japan's view, following this approach 
would run counter to the dispute settlement's objective of promoting satisfactory, prompt, and 
positive resolution of the dispute.639 Japan also notes that other SPS panels have asses sed the 
consistency of challenged measures based on evidence that post -dated the establishment of the 
Panel.640  
7.138.   It is the Panel's view that complainants must m ake a cognizable claim of a breach in their 
panel request. Although complainants do not have to de lineate the arguments and evidence they 
will use to support their claims in their panel requests641, they do have to identify the measure and 
the alleged incons istency. By submitting its request for establishment of a panel, a complaining 
Member identifies t he boundaries of a dispute and decides that it is ripe for consideration before a 
panel. Pursuant to Article 3.7 of the DSU, Members are obliged to determine whether utilizing 
dispute settlement proceedings will be fruitful before bringing a case . It would  be difficult to 
determine that a claim is fruitful if the position of the complainant is that it is only at some point 
during the panel proceedings that the factual situation may change such that an inconsistency 
might  arise. In the Panel's view, a compla inant must have a well -founded basis for believing that 
the challenged measures are inconsistent with the covered agreements before requesting the 
establishme nt of a Panel. Therefore, the Panel finds Japan's reliance on Article 3.7 of the DSU to 
be inappos ite. 
7.139.   Members  may challenge continuing obligations. They may challenge measures whose 
effects will materialize in the future, but which arise out of a situatio n existing at the time of the 
establishment of a panel.642 They may challenge new measures that were  adopted since the 
                                                
635 In its response to Panel question No. 115, Japan listed the following cases that it argues have 
assessed the consistenc y of a challenged measure with WTO obligat ions, on the basis of post -establishment 
evidence : Panel Report s, Japan – Alcoholic Beverages II ; Korea – Alcoholic Beverages ; Argentina – Hides and 
Leather ; Thailand – Cigarettes ; China – Raw Materials ; Philippines – Distilled Spirits ; Argentina – Import 
Measures ; Canada – Dairy (Article 21.5 – New Zealand and US) ; US – Upland Cotton ; US – Countervailing and 
Anti-Dumping Measures (China) ; US – Large Civil Aircraft ; EC – Large Civil Aircraft ; Australia – Apples; 
Australia – Salmon ; Japan – Apples ; US – Tuna; US – COOL ; US – Clove Cigarettes ; EC – Seal Products ; EC – 
Trademarks and Geographical Indications ; China – Intellectual Property Rights ; and Russia – Pigs (EU) . In its 
response to Panel question No. 11 5, Korea cites to cases dealing with the provisions of the SPS Agreement 
(Panel Reports, EC – Approval and Marketing of Biotech Products , Russia – Pigs (EU) ; Appellate Body Reports, 
EC – Hormones , US/Canada – Continued Suspension , Australia – Apples , Russi a – Pigs (EU)  ). 
636 Panel Report s, EC – Approval and Marketing of Biotech Products , para. 7.3034. See also Panel 
Report, US – Animals , para. 7.339.  
637 Panel Report, India – Agricultural Products , para. 7.211. See also Panel Report, Russia – Pigs (EU) , 
para. 7.265.  
638 Panel Report, US – Animals , para. 7.118 (An nex C) and 7.447 (Article 5.6).  
639 Japan's response to Panel question No. 115 (citing Panel Reports in EC – Approval and Marketing of 
Biotech Products , paras. 7.3031 -7.3034; India – Agricultural Products , paras. 7.209 -7.213; and US – Animals , 
paras. 7.118 a nd 7.447).  
640 Japan's response to Panel question No. 115.  
641 Appellate Body Report, EC – Bananas III , para. 141.  
642 Panel Report, US – Tax Incentives , paras. 7.53 -7.54. The panel fo und in that report that 
Article  1.1(a)(1)(ii) of the SCM Agreement covers the foregoing of not only of current revenue, but also of 
revenue that would accrue in the future.  WT/DS495/R  
 
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  request for establishment, but nevertheless fall within the panel's terms of reference.643 They may 
raise the adoption of new or modification  of existing  measures as evidence that any alleged 
inconsistency has already been removed.644 In those situations, evidence relating to the factual 
situation after the establishment of a panel may be relevant to a panel's assessment of 
consistency.  
7.140.   Due proc ess concerns  are also raised if a Panel is assessing the measure's conformity 
based on the factual situation after it was established. It will be difficult for a respondent to 
develop a defence if the evidence supporting the claims is constantly updated an d changing. 
Likewise, it can be difficult for a complainant to address measures that are continually updated or 
even replaced in the course of the proceedings.645 Moreover, a panel has to be able to organize the 
proceedings and its work in order to bring abo ut a prompt resolution of the dispute.646 If the Panel 
were to continually accept new evidence and then, as due process dictates, allow the other party a 
meaningful opportunity to comment on it647, the proceedings might never end. Hence , the Panel  
does not see  that Articl es 3.3 and 3.4 of the DSU support Japan's position.648  
7.141.   Japan is correct that any temporal limitations on the scope of the Panel's analysis must be 
based on the nature of the claims. It will also require the Panel to balance various interests, 
including syst emic interests as well as those of the parties, and both general and case -specific 
considerations.649 In its request for establishment of a panel, Japan did not indicate that it believed 
the inconsistency of Korea's measures with Articles 2.3 and  5.6 would a rise in the future. Rather in 
paragraphs 18(a) and (c) of its request Japan used the present tense and claimed that Korea's 
measures "are" inconsistent with Articles 2.3 and 5.6.650 The Panel understand s, therefore, that 
Japan is claiming that Ko rea's measur es were inconsistent with those obligations at the time this 
Panel was established. Japan must thus provide evidence with respect to the factual situation up to 
and including the date of establishment of a Panel in order to meet its burden of p roof that it s 
alternative measure achieves Korea's ALOP.  
7.142.   This does not mean that the Panel will ignore evidence relati ng to the period subsequent to 
its establishment . As noted  in section 7.1 above , it remain s within the Panel's discretion whether 
to rely on such evidence.651 In the Panel's view, such evidence can be used to confirm the current 
status of the measures.652 For example, as Japan noted, Korea could re ly on post -establishment 
evidence to demonstrate th at any alleged discrimination has been removed or that changing 
conditions in radionuclide concentration levels would no longer render Japan's alternative measure 
capable of achieving Korea's ALOP. In that  sense, such information could affect whether the P anel 
issues a recommendation with regard to Korea's measures.653  
                                                
643 Panel Report, Russia – Pigs (EU) , para. 7.176. The panel in Russia – Pigs (EU)  ruled on inconsistency 
of measures, which were adopted after the panel was estab lished, as the parties agreed that the terms of 
reference covered both measures.  
644 Panel Report, China – Raw Materials , para. 7.25.  
645 Appellate Body Report, Chile – Price Band Syste m, para. 144.  
646 Appellate Body Report, Thailand – Cigarettes , paras. 150 an d 155.  
647 Appellate Body Report, Thailand – Cigarettes , para. 150 (citing Appellate Body Report, Australia – 
Salmon , paras. 272, 278, and Appellate Body Report, US – Gambling , para. 270).  
648 We note that Japan argues that if the Panel were to only look at ev idence relating to the factual 
situation prior to the Panel's establishment its report would be immediately out -of-date and thus not assist the 
DSB in making recommendations. We fin d this argument unavailing. By its very nature, dispute settlement 
takes ti me. Once drafted, panel reports must be translated which can take a considerable amount of time; then 
they must be circulated to Members for 20 days before they can be considered fo r adoption; they may also be 
appealed. These procedures mean that all panel  reports run the risk of addressing a factual situation that no 
longer exists. Indeed, some panels have even ruled on measures that had already expired by the time they 
issued their  rulings – to provide a positive solution to the dispute. This situation al one is not sufficient for us to 
conclude that we would somehow be acting inconsistently with the DSU if we were to organize our proceedings 
in such a way as to limit the temporal sc ope of our analysis.  
649 Appellate Body Report, Thailand – Cigarettes , para. 150. 
650 Japan's request for the establishment of a panel, para. 18.  
651 See Appellate Body Report, EC – Selected Customs Matters , para. 188 and EC – Bananas III 
(Article  21.5 – Ecuador II), para. 270.  
652 Panel Report, Russia – Pigs (EU) , para. 7.456.  
653 Panels have, in the past, made findings on expired measures, but declined to issue a 
recommendation for the responding party to bring the measure i nto conformity. See e.g. Panel Report, US – 
Poultry (China) , paras. 7.55 -7.56. WT/DS495/R  
 
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  7.143.   The Panel notes that its conclusion is with respect to the period in time that the evidence 
relates to rather than when the evidence itself w as generated. As noted in paragraph 7.7 above , 
the Panel is  not excluding from our evaluation evidence such as scientific analyses or studies 
provided by the parties or supplied by the experts' to the Panel, even if they were developed after 
the establishment  of the Panel. However, the data underlying the analysis  or conclusion should 
relate to the factual situation with respect to the potential contamination of food products with 
radionuclides that formed the basis for the claims at the date of establishment of the Panel – i.e. 
28 September 2015.  
7.7.3   Technical and eco nomic feasibility  
7.144.   In analysing the technical and economic feasibility of the proposed alternatives, the panel 
in India – Agricultural Products  stated that a panel should assess "whether the alternativ e measure 
would constitute an option reasonably availabl e taking into account technical and economic 
feasibility in the real world", including "the risk of incorrect enforcement".654 In particular, the 
respondent's existing use of a proposed alternative, eve n if in a different context, weighs in favour 
of a findi ng of feasibility.655 Moreover, additional administrative burden imposed by an alternative 
measure does not per se  render the measure infeasible. 656   
7.145.   Japan relies on the finding of the panel in India-Agricultural Products  to posit that as Korea 
subjects all imports from Japan that are not subject to an import ban to caesium  and iodine  
testing, the proposed alternative measure is reasonably available to it.657 
7.146.   Korea did not provide any argumentation on this  element in its first written submission658 
or in its stat ements to the Panel at the first meeting.659 The Panel asked Korea to confirm whether 
this meant it was conceding technical and economic feasibility if the alternative measure achieved 
its ALOP.660 Korea responded that:  
The Panel question posits a hypothetical , unidentified alternative measure. Without 
knowing what the alternative measure is, the comparison cannot be made and thus it 
is not possible to say whether the alternative measure is technically and  economically 
feasible or significantly less trade restr ictive.661 
7.147.   Korea presented no further argumentation on technical and economic feasibility in its 
second written submission662 or in its statements to the Panel at the second meeting.663 Therefore, 
the Panel  clarified and reiterated its question:  
In response to P anel question 55, Korea stated that it did not know which alternative 
measure the Panel was referring to and thus they could not answer the question. 
Given that the only alternative measure at issue i s the one Japan has put forward, 
i.e., testing whether f ood contains more than 100 Bq/kg of caesium, could you please 
answer the Panel's previous question 55?664 
                                                
654 Panel Report, India – Agricultural Products , para. 7.540 (quoting Panel Reports, Japan – Apples 
(Article  21.5 – US), para. 8.171; and, Australia – Apples , para. 7.1334).  
655 Panel Report, India – Agricultural Products , paras. 7.541 -7.542. See also Panel Report, Japan – 
Apples (Article 21.5 – US), para. 8.187.  
656 Panel Report, India – Agricultural Products , para. 7.543 . 
657 Japan's first written submission, paras. 397 -398. 
658 See Kore a's first written submission, paras. 229 -299 (containing the entirety of Korea's arguments 
on Article 5.6).  
659 Korea' s opening statement at the first meeting of the Panel, paras. 87 -111. 
660 See Panel question No. 55 ("Does Korea concede for the import bans t hat if the alternative measure 
achieved Korea's ALOP it would be technically and economically feasible and significa ntly less trade restrictive 
than the current measures?").  
661 Korea's response to Panel question No. 55.  
662 Korea's second written submission, paras. 258 -305. 
663 Korea's opening statement at the second meeting of the Panel, paras. 61 -108. 
664 Panel question No. 147. WT/DS495/R  
 
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  7.148.   Korea responded : "Korea reiterates that Japan 's proposed measure does not achieve 
Korea 's ALOP a nd thus does not constitute a valid alternative measure for purposes of 
Article  5.6."665 
7.149.   The Panel notes that Korea already undertakes caesium  and iodine  testing on randomly 
selected samples from every consignment of Japanese products that cross its border. In the 
absence of any refutation of Japan's prima facie  case that Korea is perfectly capable technically 
and economically of conducting caesium and iodine testing on every consignment of Japanese food 
products, the Panel concludes that Japan has establishe d that the proposed alternative measure is 
technically and economically feasible.  
7.7.4   Whether  Japan's proposed alternative measure is significantly less trade 
restrictive than Korea's measures  
7.150.   As to the third element of the test, the panel in India – Agricultu ral Products  noted that 
any measure that places conditi ons upon importation, even if stringent, "would still be significantly 
less restrictive to trade than an outright prohibition ".666 Korea does not contest that Japan's 
alternative measure would be less tr ade restrictive than an import ban. However, Korea does  
argue that the proposed alternative is not significantly less trade restrictive than the measures 
currently in place with respect to the additional testing requirements.  
7.151.   Japan does not challenge the r equirement for pre -export testing or that randomly sele cted 
samples from all consignments from Japan be tested for caesium  and iodine , but rather the testing 
for additional radionuclides if the caesium or iodine content is more than 0.5 but below 100 Bq/kg . 
In Japan's view this additional testing is unnecessar y from a sanitary protection point of view and 
is trade restrictive because of the additional time and cost associated with the testing. Indeed, 
Japan argues that it amounts to a de facto prohibition.667  
7.152.   Korea focuses on the significance  of the difference i n trade restrictiveness between the 
current regime and what Japan is proposing as an alternative. Korea notes that under Japan's 
alternative measure testing of all products for caesium  and iodine  will continue, the issue is just 
whether the selected sample s will be referred for testing of additional radionuclides. In Korea's 
view this is not a significant difference from the current situation for the additional testing 
requirements.668   
7.153.   The degree of red uction in trade restrictiveness to achieve the level of  significance required 
by the footnote in Article 5.6 has not been dealt with by panels or the Appellate Body in the 
context of SPS disputes as most challenged measures have been import bans. However,  the 
Appellate Body has understood significance in the c ontext of the SCM Agreement to connote 
something that can be characterized as "important, notable or consequential".669 The panel in US – 
Upland Cotton (Article 21.5  – Brazil ), noted that significance ma y manifest itself in a number of 
ways and that a determ ination is necessarily case -by-case depending on the factual 
circumstances. The panel in Korea – Commercial Vessels noted that significance should be of 
"sufficient magnitude or degree, seen in the con text of the particular product at issue, to be able 
to meaningfully affect suppliers."670 Panels should not depend solely on a given level of numeric 
significance as "other considerations, including the nature of the same market and the product 
under conside ration may also enter into such an assessment, as appropriate in a given case."671 
For example, a relatively small change in cost could be significant if profit margins in the relevant 
industry are quite narrow.  
                                                
665 Korea's response to Panel question No. 147.  
666 Panel Report, India – Agricultural Products , paras 7.590 (quoting Panel Report, Australia – Salmon , 
para. 8.182).  
667 Japan's responses to Panel question Nos. 46, 56, 70, 137 and 159; comments on Korea's r esponse to 
Panel question No. 129.  
668 Korea's comments on Japan's response to Panel question No. 147; first written submission, para. 
297. 
669 Appellate Body Report, US – Upland Cotton , para. 426.  
670 Panel Report, Korea – Commercial Vessels , para. 7.571; see a lso Panel Report, Indonesia -Autos , 
para. 14.254.  
671 Panel Report, US – Uplan d Cotton , paras. 7.1329 –7.1330.  WT/DS495/R  
 
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  7.154.   Japan provided the Panel with evidence as to t he cost of the additional testing if conducted 
in Korea would be roughly half the value of the average consignment of fishery products exported 
from Japan to Korea (8 ,000 USD)672 or in Japan.673 Japan also argues t hat it can take up to six 
weeks  for the tests to be conducted . Japan analogizes that such charges could amount to an 
additional 50% import charge over and above the import tariffs already in place.674 Korea, argues 
that Japan is incorrect about the amount of  time required for the testing and the amount of 
product consumed.675 However, Japan's estimate is based on a press release from Korea's Ministry 
of Oceans and Fisheries.676 . Japan argues that exporters will incur increased storage costs in 
Korea while awaiti ng test results or a more likely alternative t o avoid deterioration of perishable 
goods would be for them to opt to ship the consignment back to Japan for sale on the domestic 
market.677 This is because such goods would spoil before results of the test becom e available.678 
Thus, Japan argues that the addi tional testing requirements make s it virtually impossible to 
market fresh food products in Korea, in which trace amounts of caesium and iodine have been 
detected.679 While Korea disputes the time necessary to con duct the additional testing, it admits 
that su ch procedure s would take two weeks using the equipment of the Korean Government.680 
Even assuming that the additional testing can be conducted in as little as two weeks, which is 
contradicted by Korea's own conte mporaneous documents681, that period of time is in all likelihood 
a time -period which  many perishable  products, such as fish, would spoil. The fact that none of the 
shipments referred for the additional testing actually underwent this testing and were instea d 
returned to Japan or destroyed confirms, in our view, the highly trade -restrictive nature of the 
additional testing requirements.682  
7.155.   Korea maintains that any increase in time for testing is a result of the available technology 
and equipment for the testin g rather than a function of the trade restrict iveness of the 
measures.683 For its part, Japan argues that what matters is the fact that the measures are trade 
restrictive rather than the reasons why the tests take more time and are costly.684 Korea seems to 
implicitly acknowledge the additional burden whe n it stated during the second meeting that for 
point-of-sale testing, domestic goods that are referred for additional testing are first tested only 
for strontium and plutonium. In making this statement, Korea e xplained that MFDS laboratories 
only have the equipment for strontium and plutonium and it would only be if those are detected in 
levels in excess of the Codex limits that a sample would be sent to an external laboratory for 
testing for the remaining radio nuclides. Importers of Japanese products would  use private 
laboratories. Japan attempted to locate private laboratories capable of conducting the additional 
testing for all of the radionuclides and of 25 institutes contacted only one indicated that it coul d 
                                                
672 Japan's opening statement at the second meeting of the Panel, para. 69. In response to Panel 
question No. 70, Korea provides a table of the costs f or testing for particular radionuclides if the tests were 
conducted by the Korea At omic Energy Research Institute (KAERI).  Korea notes that MFDS, the National 
Agricultural Products Quality Management Service, the Korea Institute of Nuclear Safety (KINS), and the Korea 
Research Institute of Standards and Science (KRISS) are also capable of performing the tests for the all 
seventeen "other radionuclides". In particular, plutonium testing costs 2,250,000 Korean Won while a test for 
strontium -90 would cost 670 ,000 Korean Won.  
673 Japan's response to Panel question No. 70. Japan's estimate incl udes the cost of testing for strontium 
and plutonium, storage costs, and the cost of shipment of the sample back to Japan. Japan also includes an 
estimate for shipping the e ntire consignment back to Japan.   
674 Japan's opening statement at the second meetin g of the Panel, para. 69.  
675 Korea's second written submission, paras. 302 -305. 
676 Korea's Ministry of Oceans and Fisheries, Press Release "Regarding media reports, Fishery Pr oducts 
Traceability System is useless for imported products", "[t]esting for other radionuclides takes more than 6 
weeks." (28 January 2014), (Exhibit JPN -149.b), p. 7.  
677 Japan's response to Panel question No. 70; opening statement at the second meeting of  the Panel, 
para. 69 (citing Exhibit JPN -160.b and Exhibit JPN -149.b).  
678 Japan's fi rst written submission, paras. 455 -456. 
679 Japan's first written submission, paras. 455 -456. 
680 Korea's response to Panel question No. 17.  
681 Korea's Ministry of Oceans and Fis heries, Press Release "Regarding media reports, Fishery Products 
Traceability System is useless for imported products", "[t]esting for other radionuclides takes more than 6 
weeks. Due to increased storage costs and deterio ration of merchantability, the ite m is generally shipped 
back". (28  January 2014), (Exhibit JPN -149.b), p. 7.  
682 Japan's comments on Korea's response to Panel question No. 122.  
683 Korea's second written submission, para. 304.  
684 See e.g. Japan's second writte n submission, paras. 294 -300. WT/DS495/R  
 
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  conduct such additional testing, but it was unclear whether such testing could be done on a 
commercial scale and within a time -frame required for importation of perishable product.685 
7.156.   The Panel finds, in the absence of any refutation of Japan's prima facie  case as to the 
additional cost and time requi red for the additional testing that the proposed alternative measure 
is significantly less trade restrictive than the additional testing requirements.  
7.7.5   Korea's ALOP  
7.157.   The Appellate Body has explained that there is  an implicit obligation for Members to 
determi ne their appropriate level of protection.686 As recently elaborated by the panel in India – 
Agricultural Products , while a Member's ALOP need not be determined in quantitative terms, it 
must express a "certain th reshold that denotes the position of the relev ant Member in relation to 
the intensity, extent, or relative amount of protection or risk that the Member deems to be 
tolerable or suitable."687 
7.158.   Relatedly, the level of protection cannot be determined "with such vagueness or 
equivocation that the application  of the relevant provisions of the SPS Agreement  ... becomes 
impossible".688 In particular, in the context of Article 5.5, the panel in Australia – Apples  noted 
that, if a Member were permitted to hide behind a g enerically stated ALOP, its obligations under 
Article 5.5 would be diminished.689 In addition, also with respect to Article 5.5, the panel in US – 
Poultry (China) concluded that:  
[E]ven in a case where a Member has expressed a particular ALOP, a panel should  
nevertheless examine the measure in question to determine whether that ALOP is the 
one actually being applied via that measure.690   
7.159.   Indeed, the Appellate Body has noted that if a Member fails to determine its appropriate 
level of protection, or does so wit h insufficient precision, then "the appropriat e level of protection 
may be established by [the panel] on the basis of the level of protection reflected in the 
SPS measure actually app lied".691 However, panels must remember that the "appropriate level of 
protection determines the SPS measure to be introd uced or maintained, rather than the 
appropriate level of protection being determined by the SPS measure."692 For this reason, the 
Appellate Body, in India – Agricultural Products , cautioned that it is undesirable  to discern the 
ALOP solely from the challenge d measure itself.693  
7.160.   In assessing what a Member's ALOP is, a panel should perform the assessment on the 
basis of the totality of the arguments and evidence on the record, including both the complainant's 
allegat ions and the respondent's own articulation, in stead of merely verifying whether the 
complainant's allegations are substantiated.694 Because the understanding of what the ALOP is 
cannot be completely isolated from the measures applied, prior panels have recog nized that "any 
sanitary measure applied to a given situation inherently reflects and achieve s a certain level of 
protection ".695 
7.161.   Japan avers that Korea's ALOP is 1 mSv/year. Japan derives its conclusion from a 
document (issued by Korea in 2013) and explanat ory material (issued by MFDS in 2014 and 
                                                
685 Japan's and Korea's responses to Panel question No. 31. In its response Korea indicates that several 
government agencies are capable of conducting the additional testing, but did not confirm that they would 
conduct testing o n imported products.  
686 Appellate B ody Report, Australia – Salmon , para. 206.  
687 Panel Report, India – Agricultural Products , para. 7.562.  
688 Appellate Body Report, Australia – Salmon , para. 206 . 
689 Panel Report, Australia – Apples , para. 7.970.  
690 Panel Report , US – Poultry (China) , para. 7.24 4. 
691 Appellate Body Report, Australia – Salmon , para. 207.  
692 Appellate Body Report, US/Canada – Continued Suspension , referring to Appellate Body Report, 
Australia – Salmon , para. 206.  
693 Appellate Body Report, India – Agricultural Products , para. 5.226.  
694 Appellate Body Report, India – Agricultural Products , paras. 5.219 -5.224.  
695 Panel Report, Australia – Salmon , para. 8.107; see also Panel Report, EC – Hormones  (US), 
para. 8.168 and Panel Report, EC – Hormones (Canada), para. 8.171; Panel Report, Australia  – Apples , 
para. 7.975.  WT/DS495/R  
 
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  2015) , all of which described 1 mSv/year as the dose limit for the general public.696 Korea also 
informed Japan by letter on 15 September 2014 that "its ALOP for exposure to radiation from the 
ingestion of food contam inated with radionuclides is based on the Code x Standards."697 
7.162.   Korea describes its ALOP as to maintain radioactivity levels in food consumed by Korean s 
"at levels that exist in the ordinary environment  – that is, in the absence of radiation from a major 
nuclear accident  – and thus maintain levels of rad ioactive contamination in food that are "'as low 
as reasonably achievable' (ALARA)".698  
7.163.   Korea maintains that its ALOP "is not a fixed quantitative threshold but instead aims to 
achieve a high to very high le vel of protection below  the 1 mSv/year dose limit" .699 According to 
Korea, the ALARA principle is used to determine the quantitative level that can be applied and "can 
be used to demonstrate that an exposure consistent with the pre -existent situation can be 
maintained, is reasonable and achievable".700 Thus, according to Korea, the 1 mSv/year dose limit 
is not its ALOP, but rather the upper bound of the "tolerable " level of risk while its ALOP is a level 
below that limit that is reflected by the ALARA principle .701 
7.164.   When the Panel specifically asked if it had set  maximum levels (MLs) for radionuclides in 
food, Korea responded that:  
Based on dietary surveys conducted, as well as available technology, the MLs for 
general foods have been set at 100 Bq/kg of Cs -134 + 1 37 and 300 Bq/kg for I -131.  
The MLs for baby food s are set at 50 Bq/kg Cs -134 + 137 and 100 Bq/kg of I -131. 
The ML for beverage and potable water is 10 Bq/kg of Cs -134 + 137.  The MLs for the 
other radionuclides are applied according to the guideline leve ls specified in Codex 
Stan 193 -1995.702 
7.165.   The Panel re calls that the overall limit for all radionuclides set by CODEX STAN  193-1995 is 
1 mSv/year. Korea acknowledges that it has adopted the Codex benchmark of 1 mSv/year 
radiation exposure limit, in order to qu antify the highest radiation exposure it is willin g to accept, 
keeping in mind the two objectives of not exceeding the levels in the ordinary environment and 
abiding by the ALARA principle.703  
7.166.   Korea refers to ICRP Publication 103 , which  states that "optimis ation of protection is the 
process by which 'the l ikelihood of incurring exposures, the number of people exposed, as well as 
the magnitude of their individual doses should be kept As Low As Reasonably Achievable taking 
into account economic and societal fa ctors'".704  Korea cites to the European ALARA Netwo rk for 
the objective of implementing ALARA which is:  
to reach an "acceptable" level of risk, below the dose limit which is the upper bound of 
the "tolerable" level of risk. ALARA is an obligation of means, and not an obligation of 
results, in the sense tha t the result of ALARA depends on processes, procedures, and 
judgments and is not a given value of exposure.  The acceptable level of exposure 
depends on the exposure situation as well as the societal and ec onomic 
considerations.705 
7.167.   Ms Brown explained that th e ALARA principle can be used when deciding what activity 
concentration in food to accept.706 Professor  Anspaugh noted that ALARA is a process with no 
                                                
696 Japan's first written submission, para. 338.  
697 Japan's first written submission, para. 339.  
698 Korea's first written submission, para. 234.  
699 Korea's opening statement at the second meeting of the Panel, para. 53.  
700 Korea's opening  statement at the second meeting of the Panel, para. 53.  
701 Korea's opening statement at the second meeting of the Panel, para. 53.  
702 Korea's response to Panel question No. 140.  
703 Korea's first written submission, para.  234. 
704 Korea's response to Panel ques tion No. 57(b).  
705 Korea's response to Panel question No. 57(b) (citing European ALARA Network, Newsletter 31: 
Development and dissemination of ALARA culture, (Exhibit KOR -140)).  
706 Ms Brown's response to Panel question No. 10(a) to the experts; see also Exp ert Meeting Transcript, 
para. 2.1.  WT/DS495/R  
 
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  easily discernible end point and that it cannot itself be  used as an international standard for food 
accept ance.707 
7.168.   Professor  Michel noted that the ICRP has not given a lower limit for optimization, but 
declared the long -term goal in existing exposure situatio ns to keep the exposure below 
1 mSv/year. The ICRP appl ies this goal to the most exposed individuals in a  population 
(95th percentile of the dose distribution) so that the majority of the population will remain well 
below the 1 mSv/year and receive an optimized protection.708 Ms Brown noted that the level used 
by both Japan and Korea of 100 Bq/kg of Cs -137, "is  a factor of 10 lower than the Codex guideline 
level of 1000 Bq/kg, so already they're adopting, through their conservative approach, a value that 
is already 10 times lower than the internationally agreed C odex value which has been set using 
the general AL ARA principles."709 
7.169.   With respect to levels that exist in the ordinary environment Korea maintains that this 
means in the absence of radiation from a major nuclear accident. The Panel asked Korea how it 
determ ined the level of radiation in the ordinary enviro nment absent radiation from a major 
nuclear accident. Korea replied that "[t]he ordinary environment means the situation in the 
absence of additional radiation from a major nuclear accident."710 Korea argued that radioactive 
contamination from other major nu clear releases (e.g. weapons use and test fallout) was 
accounted for in the "ordinary environment".711  
7.170.   The experts were not familiar with Korea's definition  of the "ordinary environment" being 
the levels of radiation absent a major nuclear accident. However , the experts did recognize that 
radiological protection in food is based on the principle that the additional dose from contaminating 
radionuclides in foods should not add significantly to the dose already  received in the ordinary 
environment or as they r eferred to it the "background dose".712 The background dose varies from 
country to country (and even places within countries), but a global average is 3 mSv/year.713 Dr 
Skuterud explained that an effective dose  of 1 mSv/year is approximately the dose humans 
receive, on average, from external gamma radiation in the environment and is within the large 
variation in total doses received by humans worldwide , including from other sources of background 
radiation, such as radon. 1 mSv/year is "considered to be a minor addition to already experienced 
doses – or at the same level as that existing in the ordinary environment" .714 The experts also 
explained, that if someone so desired they could distinguish the levels of radiation from nuclear 
accidents from those in backgrou nd radiation by knowing the isotopes released during the accident 
and comparing the historical measurements before the accident to those after the accident.715 
7.171.   The Panel accepts that Korea has determined its ALOP for itself and that for Korea these 
concepts are important and inform how it formulates its SPS measures.716 Korea notes that 12% of 
                                                
707 Expert Meeting Transcript, para. 1.7.  
708 Professor Michel's response to Panel question No. 10(a) to the experts.  
709 Expert Meeting Transcript, para. 2.1. Ms Brown also noted "there wi ll always be political or social 
press ure in a country to keep reducing doses. I think what is important here is for trade between countries 
there has to be some numerical value set in order to establish the movement of food and how much 
radionuclides they  contain. This is why we have the Code x guideline levels for international trade." See Expert 
Meeting Transcript, para. 2.4.  
710 Korea's response to Panel question No. 58 (ii).  
711 Korea's response to Panel question No. 58 (iii); second written submission, par as. 260 -264. The 
Panel notes in this r egard, that Korea makes no reference to the Chernobyl nuclear accident or how this is 
accounted for in its ALOP.  
712 Dr Skuterud's response to Panel question No. 11 to the experts.  
713 Ms Brown's response to Panel question  No. 11 to the experts.  
714 Dr Skuterud' s response to Panel question No. 11 to the experts.  
715 See Ms Brown and Professor Michel's responses to Panel question No. 11 to the experts. The Panel 
notes that Korea does not claim to have determined the additional c ontribution to background levels from the 
Fukushima Dai -ichi accident.  
716 The Panel makes this conclusion in light of the prerogative for Members to determine their own 
ALOP. However, the Panel notes that although Korea referred the Panel to the Korea Food Code where Korea 
expresses its adheren ce generally to the ALARA principle, Korea has not provided the Panel with any evidence 
that this ALOP, as articulated, pre -existed the onset of this proceeding. The Panel has received no 
documentation of how Korea dev eloped its ALOP or where this ALOP is set forth in its internal legislation or 
regulations. cf Panel Report, Australia -Apples, para. 7.963 referencing Australia's Import Risk Analysis 
Handbook Australia's ALOP for imported food products; Panel Report, US – Poultry (China), paras. 7.242 -7.243 
referencing the Poultry Products Inspection Act 21 USC 466 for the United States' ALOP for Poultry; Panel 
Report, US – Animals , para. 7.378 referring to 7  USC 8303(a) for the United States' ALOP for animal diseases;  WT/DS495/R  
 
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  its background radiati on (or 0.35 mSv/year) is attributable to food products, and therefore it aims 
to keep exposure from additional external sources "as low as possible below 1 mSv/year".717 We 
appreciate Korea's adherence to the ALARA principle. We note that both the ICRP and C odex 
applied the ALARA principle when arriving at the dose limit for all radionuclides (1 mSv/year) and 
the guideline  levels for the individual radi onuclides. Korea, for its part, maintains that its ALOP is 
not a fixed quantitative threshold. Although the SPS Agreement does not oblige Members to put 
forth a quantitative ALOP, their ALOPs must also not be so vague or equivocal as to evade their 
obligat ions.  
7.172.   Prior panels have referred to the SPS measures applied to confirm the ALOP that is 
inherently reflect ed therein. In our view, if a Member is applying a particular measure with an 
express quantitative limit for contaminants, that is an indicator that  products containing levels of 
contaminants below that limit will satisfy its ALOP. We observe that not only  for the challenged 
measures, but for food products in general, Korea has established maximum levels for 
radionuclides with a maximum upper limit of  1 mSv/year for total consumption of man -made 
radionuclides from all sources Therefore, in the Panel's view,  it must determine whether Japan's 
alternative measure achieves the level of protection stated as:  
[T]o maintain radioactivity levels in food consu med by Korean consumers at levels 
that exist in the ordinary environment – in the absence of radiation from a major 
nuclear accident – and thus maintain levels of radioactive contamination in food that 
are "as low as reasonably achievable" (ALARA), below t he 1 mSv/year radiation dose 
limit.718  
7.173.   Thus, if Japan can demonstrate that its proposed alternative measure c an achieve an ALOP 
that is below 1 mSv/year it will have met its burden under the second element of Article 5.6.  
7.7.6   Japan's proposed alternative measur e  
7.174.   The Panel will examine whether the alternative measure proposed by Japan achieves 
Korea's ALOP in the light of the level of risk posed by the concerned products based on relevant 
scientific evidence on the record.719 The Panel 's task is to determine wheth er Japan has adduced 
sufficient evidence to prove that an alternative measure exists which achieves Korea 's ALOP. The 
Appellate Body has stated  in Australia – Apples  that, in doing so, the  Panel must make its own 
objective assessment of whether the altern ative measure achieves Korea's ALOP and that it should 
not feel constrained by a fear of doing a de novo  review . In explaining its reasoning the Appellate 
Body emphasized the different legal questions between Articles 5.1 and Article 5.6. In particular, 
the Appellate Body noted that the question under Article 5.6 "is not whether the authorities of the 
importi ng Member have, in conducting the risk assessment, acted in accordance with the 
obligations of the SPS Agreement," but rather whether the importing Mem ber could have adopted 
a less trade -restrictive measure.720 
7.175.   Having clarified the standard of review under A rticle 5.6, the Panel must also consider the 
analytic approach that it will take to analysing the evidence and what evidence it will consider. We  
note that in assessing whether Japan 's alternative measure achieves  Korea 's ALOP under Article 
5.6, the Panel  is not called upon to conduct a risk assessment under Articles 5.1, 5.2 and Annex 
A(4).721 However, Articles 5.1, 5.2 and Annex A(4)  can provide guidanc e as to how the Panel 
should approach this question . In particular Annex A(4) defines a risk assessment i n this context 
as the evaluation of the potential for adverse effects on human health to arise from the presence 
of contaminants (e.g. radionuclides) i n food. Article 5.1 also notes that the risk assessment 
techniques of the relevant international organiza tions should be taken into account. Article 5.2 
                                                                                                                                                  
Panel Report, Russia – Pigs (EU) , para. 7 .741 referring to Customs Union Decision 317 for Russia's ALOP for 
African swine fever.  
717 Korea's opening statement at the second meeting of the Panel, para. 67.  
718 Korea's opening statement at the second meeting of  the Panel, para. 66.  
719 Panel Report, US – Animals , paras. 7.442 and 7.443. See also Appellate Body Report, Australia – 
Apples , paras. 356, 364 -365.   
720 Appellate Body Report, Australia – Apples , para. 356. This is consistent with the conclusion of the 
Appellate Body in Australia – Salmon , that th e test under Article 5.6 requires the panel or the Appellate Body 
to examine whether any of the possible alternative SPS measures identified would achieve the importing 
Member's appropriate level of protection. (se e Appellate Body Report, Australia – Salmo n, para. 208.)  
721 Indeed, it is not a panel's role under any circumstance to conduct a risk assessment.  WT/DS495/R  
 
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  requires Members to take into account (as relevant) available scientific evidence; relevant 
processes a nd production methods; relevant inspection, sampling and testing methods; prevalence 
of specific diseases  or pests; existence of pest - or disease -free areas; relevant ecological and 
environmental conditions; and quarantine or other treatment. The Panel als o bear s in mind that 
the Appellate Body has stated that the scope and method of an assessment may be info rmed by 
the level of protection of the importing Member.722 
7.176.   In light of the fact that the alternative measure is being assessed for achieving the 
importi ng Member's ALOP, the panel in US – Animals chose to analyse the same factors that the 
respondent Member normally uses to perform its own risk assessments as well as to refer to the 
relevant international standard.723 To that end, the Panel asked Korea the c riteria or factors that it 
normally considers when conducting risk assessments.724 Korea explained that for  risk assessment 
it considers:  
[T]he toxicity of contaminants, levels of contaminants in foods as determined by food 
contamination surveys, extent of dietary exposure as determined by market basket 
and other dietary surveys, and recent risk assessments co nducted by the international 
science community shall be considered when MFDS develops maximum levels of 
contaminants in foods.725 
7.177.   The Panel also finds re levance in the four steps for risk analysis developed by Codex , 
which are a risk assessment technique dev eloped by a relevant international organization,  as a 
recognized and accepted approach for analysing food safety risk726 that the Panel  will take into 
account. In particular, the four steps are: (i) Hazard identification727; (ii) Hazard 
characterization728; (iii) Exposure assessment729; and (iv) Risk characterization.730 The Panel finds 
these steps are an appropriate and logical way to structure its analysis of th e factors Korea 
provided.  
7.178.   Therefore, in determining whether Japan's proposed alternative measure achieve s Korea's 
ALOP, the Panel will examine (i) the identification and characterization of the contaminants at 
issue; (ii) the levels of contaminants in Jap anese food products; (iii) the extent to which Korean 
consumers will be exposed to radionuclides through their diet if Japan's alternative measure is 
adopted; and (iv) risk characteriz ation. Finally, based on this analysis, the Panel will determine the 
level of protection achieved by Japan's alternative measure. In the Panel's review, it will also make 
refere nce, when appropriate, to assessments conducted by the international science community, 
such as ICRP, Codex, IAEA, and UNSCEAR. The Panel will then det ermine whether taken as a 
whole, Japan has established that testing for caesium alone at a level of 100 B q/kg would be 
                                                
722 Appellate Body Report, US/Canada – Continued Suspension , para. 534.  
723 Panel Report, US – Animals , paras. 7.45 0-7.452. It should be noted that the US fa ctors were 
published on the Animal and Plant Health Inspection Service website.  
724 Panel question Nos. 141 and 150.  
725 Korea's response to Panel question No. 141 (citing "Principles of Development and Application of 
Standards in Foods" MF DS Administrative Ma nual). 
http://www.mfds.go.kr/index.do?x=21&searchkey=title:contents&mid=695&searchword= 기준&cd=&y=14&pag
eNo=1&seq=22897&cmd=v. This question specifically addressed elements that Korea considered when 
reviewing and re gulating contaminants. However, Korea also provided information on its risk management 
approach.  
726 The Panel notes that the Codex  4 steps have been discussed as relevant to the concept of risk 
assessment by the panel in EC – Hormones. See Panel Report, EC – Hormones, para. 8.106.  
727 FAO/Codex Training Package Module 4:1 defines hazard identification as: The identification of 
biologic al, chemical and physical agents capable of causing adverse health effects and which may be present in 
a particular food or group of foods. http://www.fao.org/3/a -w8088e.pdf  
728 FAO/Codex Training Package Mod ule 4:1 defines hazard characterization as: The qualitative and/or 
quantitative evaluation of the nature of the adverse health effects associated with biological, chemical, and 
physical agents which may be present in food. For  chemical agents, a dose -respo nse assessment should be 
performed. For biological and physical agents, a dose -response assessment should be performed if the data are 
available. http://www.fao.org/3/a -w8088e.pdf       
729 FAO/Codex Training Package Module 4:1 defines exposure assessment as: The qualitative and/or 
quantitative evaluation of the likely intake of biological, chemical, and physical agents via food as well as 
exposures fr om other sources if relevant. http://www.fao.org/3/a -w8088e.pdf  
730 FAO/Codex Training Package Module 4:1 defines risk characterization as: The qualitative and/or 
quantitative estimation, including attendant uncertainties, of the probability of occurrence and severity  of 
known or potential adverse health effects in a given population based on hazard identification, hazard  
characterization and exposure assessment. http://www.fao.org/3/a -w8088e.pdf  WT/DS495/R  
 
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  sufficient to ensure that Korean consumers will be exposed to less than 1 mSv /year of 
radionuclides in food products from all sources.  
7.179.   In this regard, the Panel sought the experts' advice in understanding and clarifying the 
arguments and evidence presented. The Panel did not require or expect the experts to fill in any 
gaps in Japan's evidence or to make the case for either Japan or Korea.  
7.180.   The Panel recalls, that it must determine whether Japan's proposed alternative measure 
would achieve Korea's ALOP at both the time of adoption and for the maintenance of the 2011 
additional testing requirements, the product -specific import bans, the blank et import ban, and the 
2013 additional testing requirements. The Panel  also recall s that with respect to the maintenance 
of the measure Japan must establish the inconsistency existed at the date of establishment of the 
Panel. The Panel's evaluation of the data is done bearing that in mind. To that end, the Panel  notes 
that the experts confirm ed that their opinions would not change if the data provided by Japan had 
ended on 28 September 2015.731 
7.181.   The Panel wants to make clear that in conducting this analysis it  is not substituting its own 
scientific judgment for that of Korea. Korea has not expres sed its scientific judgment in the form of 
a risk assessment that has evaluated the scientific evidence and reached scientific conclusions, 
therefore there is nothing t o be substituted.732 The Panel is  not conducting a risk assessment for 
Korea. Indeed, the Panel has  already noted that a panel is not called upon to conduct a risk 
assessment in addressing claims under any provision of the SPS Agreement . Second, a finding th at 
an alternative measure which meets Korea's ALOP exists does not oblige Korea to adopt  that 
particular measure if it is required to bring its measures into conform ity with Article 5.6 of the 
SPS Agreement. If Korea is required to change its measures, it still has the flexibility to adopt 
another measure so long as it is not more trade restr ictive than required to  achieve its ALOP.  
7.7.6.1   Contaminants at issue  
7.182.   In the context of contaminants, Korea refers to examining the "toxicity" of contaminants. 
Therefore, the  Panel will begin by identifying the relevant contaminants and their potential adverse 
health effects.  
7.183.   The amount of radionucl ides released, also called the " source term ", comprises 
radionuclides released from the cores and confining structures into the en vironment during and 
after the accident at the FDNPP. These releases are documented in U NSCEAR data as well as in the 
Technical Volume 1 of the 2015 IAEA Director -General's Report. From this information, the Panel  
can conclude that the main radionuclides r eleased during the accident were Cs -134, Cs -137 and I -
131.733 Strontium and plutonium were  also released.734 As noted in paragraph 7.65 above, the 
Panel has determined that Korea's measures at issue only definitivel y regulate Cs -134; Cs -137; I-
131; Sr -90; and Pu -239 and 240.  
7.184.   Approximately 1 7.5 Pbq of Cs -134 and 15 Pbq of Cs-137 w ere released into the 
atmosphere. Caesium was the radionuclide released in the greatest absolute numbers as well as in 
the largest proporti on to other radionuclides.735 In the initial accident 150 -160 PBq of I -131 is 
estimated to have been released. We recall t hat I-131 has a half -life of 8 days. Therefore , after 
                                                
731 Experts' response to Panel question No. 99(c).  
732 In response to Panel question No. 118, Korea provided a list of over 70 exhibits that it says reflect 
Korea's scientific judgment.  However, in its answer Korea did not  explain how those documents were 
considered by the Korean a uthorities or how they served as a basis for the imposition of the measure. Many of 
the exhibits contain the text of various measures Korea has adopted (including ones Japan does not challenge), 
but do not have any underlying reasoning or scientific eviden ce as to why those actions were taken. Other 
exhibits relate to bilateral communications between Japan and Korea that may seek or even transmit data on 
the situation in Japan, but they do not cont ain any evaluation or judgment  by Korean government authorit ies. 
733 2015 IAEA DG Report, Technical Volume 1, (Exhibit JPN -7), pp. 148 -149. 
734 A full discussion of the accident as it occurred as well as the releases catalogued since then can be 
found in 2015 IAEA DG Report, Technical Volume 1, (Exhibit JPN -7). 
735 2015 IAEA DG Report, Technical Volume 1, (Exhibit JPN -7), p. 149.  WT/DS495/R  
 
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  80 days, only 0.1% of the original I -131 activity would remain .736 I-131 was not rel eased in 
significant amounts after the reactor was shut down.  
Table 12: Estimates of radionuclides released from the FDN PP 
Codex 
radionuclide  Estimated core 
inventory in 
Fukushima reactors 
1 -3 (PBq)  
NE=Not Estimated  Estimated release 
into the 
atmosphere ( PBq)  
NE=Not Estimated  Detected in 
environment after 
Fukushima? (Yes, 
No, Trace, Not 
Measured [NM])  Detected in fish / 
other food in 
Japan since 
Fukushima event? 
(Yes, No, Not 
Measured [NM])  
H-3 5.6 0.5 Y NM 
C-14 0.0007  NE Trace  NM 
S-35 NE NE Trace  NM 
Co-60 0.009  NE Trace  N 
Sr-89 593 2.0 Y N 
Sr-90 522 0.14 Y N 
Tc-99 10,000  2.0 Y NM 
Ru-103 9860 3.2 NM NM 
Ru-106 2610 0.86 N N 
I-129 0.0002  0.000002  Trace  N 
I-131 6,000  159 NM NM 
Cs-134 719 17.5 Y Y 
Cs-137 700 15.3 Y Y 
Ce-144 5,920  0.011  Trace  N 
Ir-192 NE NE NM NM 
U-235 0.014  NE N N 
Pu-238 14.7 0.0000055  Trace  N 
Pu-239 2.6 0.0000068  Trace  Y 
Pu-240 3.3 0.0000068  Trace  Y 
Am-241 1.5 NE Trace  N 
Source: Analysis of caesium and additional radionuclides in food products from Japan and the rest of the  world 
(Exhibit JPN-11), Table 7 .737 
 
7.185.   Korea is correct that there are elements of uncertainty with respect to the direct release of 
caesium into the ocean. The IA EA provides a chart compiling all the various estimates as well as 
their variability, depending on the use of a normal or log -normal distribution. While there is 
considerable variability, the IAEA estimates that using the preferable log -normal distribution738 and 
a conservative approach of taking the uncertainty range from the smallest value to the lar gest 
one, one could accept a mean value of 3.9 PBq within a range of 2.7 -5.7 PBq of direct deposition 
of Cs-137 to the ocean.739  
7.186.   The r elease of strontium was est imated to be three to four orders of magnitude less than 
the release of caesium.740 Strontium acti vity in the ocean was found to be much lower than Cs -137 
activity. For Sr -90 the activity ratios were 0.02 –0.24.741 
7.187.   With respect to plutonium the IAEA confirms th at:  
                                                
736 Analysis of caesium and additional radionuclides in food products from Japan and the rest of the 
world, (Exhibit JPN -11), pp. 12 -13. 
737 Data in Columns 2 and 3 of Table 7 are from computer simul ation data from Nishihara et al (2012), 
ENEA (2014), Povinec et al (2013), and Schwantes et al (2012). Environmental detection data (Column 4) 
from the Fukushima event from Kakiuchi et al 2012, Ma tsumoto et al 2013 [H -3]; Park et al 2013 [C -14], 
Priyadarsi  et al 2011 [S -35]; Doi et al 2013 [Tc -99]; Zheng et al 2012, Yamamoto et al 2 014 [Pu -239, 240; 
JAEA 2014 [Pu -238]; Yamamoto et al 2014 [Am -241]; Suzuki et al 2013, Muramatsu et al 2014  [I-129]; 
Kojima et al 2012 [Co -60, Ce -144]. Fish / other food detectio n data (Column 6) are from FAJ 2 015a (fish), 
MAFF 2015a and NRA  2015 (other foods).  
738 This method is less sensitive to the assumptions about the relative accuracy of the original results.  
739 2015 I AEA DG Report, Technical Volume 1, (Exhibit JPN -7), p. 157.  
740 2015 IAEA DG Report, Technical Volume 1, (Exhibit JPN -7), p. 149.  
741 2015 IAEA DG Report, Technical Volume 1, (Exhibit JPN -7), p. 154.  WT/DS495/R  
 
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  [O]nly a few samples collected after the Fukushima Daiichi accident showed the 
isotopic sig nature of reactor plutonium, in excess of the concentration ratios 
associated with historical nuclear weapon tests [97 -99]. The concentration of 
plutonium isoto pes found at the Fukushima Daiichi site (239Pu and 240Pu ~0.1 Bq/kg 
together [98, 99]) correspon ded to the background level, indicating that the releases 
of plutonium from the Fukushima Daiichi units during the accident were limited.742  
7.188.   While acknowledging that there is possibility of locations with larger deposition, the IAEA 
concludes that "the data  indicate that plutonium release due to the core melts in the Fukushima 
Daiichi NPP did not notably increase the environmental distribution of plutonium" .743 Korea 
provides the Panel with data from 2016 and 2017, which indicate that the retained water in the  
PCVs in units 2 and 3 still contain significant amounts of plutonium.744 Japan argues that this 
confirms their conclusion that there was not a significant releas e of Pu -239 and 240 during the 
accident.745  
7.189.   With respect to plutonium in the ocean, Japan also re fers to the fact that the ratios of 
plutonium radioisotopes in the North Pacific did not change after the FDNPP accident. Japan argues 
that scientific studies show that only 0.000015 PBq of plutonium were release d as opposed to 
10s of Pbq of caesium (1 mil lion times less plutonium than caesium).746 Japan also notes that 
there were already 3.6 Pbq of plutonium in the North Pacific from nuclear weapons tests , both 
from global fallout and specifically additional US testing in the Marshall Islands.747 According to 
Japan this means that the existing plutonium in the North Pacific prior to the FDNPP accident was 
240,000 times greater than what was released. Japan a lso notes that no plutonium bearing the 
"fingerprint" from FDNPP has been detected in the ocean.748  
7.190.   The Pa nel also understand s that plutonium from the FDNPP has been detected on land and 
that it is reasonable to conclude that some plutonium would also have been deposited in the ocean 
during the accident. Dr Thompson explained that the way plutonium binds to so il and sediment 
explains why it did not transfer from the land to the ocean.749  
7.191.   Korea argues that continuous leaks since the accident as well as the pot ential for future 
leaks must also be assessed. Because the situation at the FDNPP is dynamic and ever cha nging, 
Korea implies that the risk in food products cannot be assessed with sufficient certainty to 
conclude that Japan's alternative measure achieves Korea's ALOP.  
7.192.   The experts explained that examination of the source term to understand what 
radionuclides  were released is important in determining what measures to apply for radiological 
protection purposes, such as developing a monitoring strategy750 or production and distribution 
restrictions. The experts concurred that after the initial release, the source term becomes less 
                                                
742 2015 IAEA DG Report, Technical Volume 1, (Exhibit JPN -7), p. 149.  
743 2015 IAEA DG Report, Technical Volume 1, (Exhibit JPN-7), p. 149.  
744 International Research Institute for Nuclear Decommissioning and Japan Atomic Energy Agency, 
Analysis Results of the Retained Water Inside the Primary Containment Ve ssel (PCV) in Units 2 and 3 
(24 November 2016), (Exhibit KOR -272), pp. 1 -3. 
745 2015 IAEA DG Report, Technical Volume 1, (Exhibit JPN -7), p.154.  
746 Expert Meeting Transcript, para. 1.12; see also Steinhauser G. Fukushi ma's forgotten radionuclides: 
a review of the understudied radioactive emissions. Environ Sci Technol. 2014;48:464 9-63, 
(Exhibit JPN-11.1(99)), p. 9.  
747 Expert Meeting Transcript, para. 1.12.  
748 According to Japan, scientists can identify the source of a particular plutonium contamination on the 
basis o f its "fingerprint" (most commonly by using the ratio of Pu -240/Pu -239 in the measurement). Plutonium 
originating from the Fukushima Dai -ichi reactors has a higher Pu -240/Pu -239 ratio than the plutonium that is 
widespread in the environment as a result of the nuclear weapons testing of the 1960s. Japan argues, and 
Professo r Michel confirms that plutonium from the FDNPP has not been detected in the marine environment.  
749 Expert Meeting Transcript, para. 1.13.  
750 The Panel notes that the terms testing, monitori ng, and sampling have been used interchangeably by 
the parties in se veral instances. However, these are different, yet inter -related concepts. As Professor Michel 
explains:  
If you have a sample you test it for caesium -137. You can test a fish - the testing  is a 
measurement process, while monitoring means, I monitor the rad ioactivity in the area from the 
source, I have a plan, and using different tests I compile the different tests which is the whole 
picture given by the monitoring.  
Expert Meeting Transcript , para. 3.34.  WT/DS495/R  
 
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  important as you have the ability to produce actual measurements in food.751 All the experts 
agreed that knowing the remaining radionuc lides contained in the reactor or the specific amount of 
leaks was not relevant to assessing the potentia l for specific products to be contaminated with 
radionuclides.752 
7.193.   Rigorous  environmental and seawater monitoring is in place in addition to the food 
monitoring programme in  Japan . Data from monitoring points in the harbour is available on an 
hourly basis and  publicly available.753 In addition to Japan's measures both UNSCEAR and I AEA are 
reviewing the data and updating their publications regularly. If a new release were to happen that 
significantly changed the make -up of radionuclides in the environment then th at might be a reason 
for modifying the testing or monitoring to take the  adjusted mix of radionuclides into account. For 
instance, at the meeting with the experts Korea provided a recent study estimating the remaining 
radionuclides in the reactor.754 The stu dy supports  Japan's assertions with respect to the 
radionuclide make -up of the initial release. If a new leak or accident resulted in the release of 
these radionuclides that had not been released before or, if so, only in minor amounts, then that 
might be a reason to monitor for those radionuclides in food production and to te st samples of 
imported products for their presence. The Panel asked the experts how long it might take between 
a major new release and the ability to detect evidence of it in food prod ucts. Recognizing the 
variables in such a situation (atmospheric vs ocea nic, size of release, etc. . .) the y all accepted 
that it would be relatively quick.755 Dr Skuterud noted that for an atmospheric release, new 
contamination might be detectable in vegeta bles the same day.756  
7.194.   Korea also mentions several other factors which it considers affect the assessment of the 
potential contamination of food products with radionuclides. In Exhibit KOR -213, t hree experts 
engaged by Korea seek to rebut the arguments and a nalysis presented by the two experts 
engaged by Japan.757 In particular, K orea raised the following issues: insufficient data on the types 
and amounts of radionuclides released from the FDNPP and the resulting contamination of the 
environment758; uncertainties  about the melt progression of the core759; detection of caesium -rich 
microparticles, demonstrating new and previously unknown release pathways760; seafloor 
sediments as a significant source of contamination, including "hot spots", where concentration 
levels o f caesium are higher761; detection within the 20km exclusion zone of highl y contaminated 
fish that can migrate to other areas762; Japan uses testing equipment with insufficient detection 
capabilities763; and that the FDNPP is an active and ongoing source of cont amination764. Japan, 
rejected Korea's arguments either as being unfounded or irrelevant.765 The Panel asked the 
experts to comment on the relevance of each of these issues and if it affected their views of 
whether Japan's analysis contained in Exhibits JPN -11 and JPN -148 was scientifically valid and 
reasonably supported. With resp ect to each issue, the consensus of the experts was that they were 
not relevant to an analysis of the potential for contamination in Japanese food products. The 
experts universally sta ted that actual measurements in food were what are required.766 The 
                                                
751 Experts' responses to Panel question No. 91 to the e xperts.  
752 Experts' responses to Panel question No. 59 to the experts.  
753 Indeed it was spikes in readings at these monitoring points that alerted authorities to the leaks that 
had not initially been disclosed in May and June of 2013.  
754 Japan Atomic Energy A gency / International Research Institute for Nuclear Decommissioning, 
Analysis Results of Waste Samples (23 February 2017), (Exhibit KOR -302).  
755 Experts' responses to Panel question N o. 16 to the experts.  
756 Dr Skuterud's response to Panel question No. 16 t o the experts.  
757 Professor Timothy Mousseau, Dr. JinHo Song and Professor Yongsung  Joo Joint Statement 
(23 August  2016), ("Statement of Korea's experts"), (Exhibit KOR -213).  
758 Korea's  second written submission, paras. 52 -53. 
759 Statement of Korea's experts (Exhibit KOR -213), p. 15.  
760 Statement of Korea's experts (Exhibit KOR -213), p. 16.  
761 Korea's first written submission, paras. 142 -150; second written submission, paras. 54 -59. 
762 Comments on experts' responses to Panel question No. 73.  
763 Korea's second writ ten submission, paras. 86 -89. 
764 Korea's second written submission, paras. 68 -80. 
765 Japan's second written submission, paras. 253 -279, 295 -297; responses to Panel question Nos. 51 , 
61, 108; comments on Korea's responses to Panel question Nos. 147, 149, 150;  comments on Korea's 
comments on the expert responses, paras. 45 -51, 136 -157; comments on the expert responses to Panel 
question Nos. 4, 5, 17, and 29 to the experts.    
766 Profess or Anspaugh expressed the consensus view of the experts when he stated that yo u should not 
take data like this and try to model what will be in fish. "The basic line is if you're concerned about what's in 
the fish, you need to go and ask the fish." Expert Meeting Transcript, para. 3.33.  WT/DS495/R  
 
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  expert s also noted  that none of these issues affected their views on whether  the analysis in 
Exhibits JPN -11 and JPN -148 is scientifically valid and reasonably supported .767  
7.195.   In particular, wi th respect to each of the issues raised by Korea the experts clarified  that: 
 While some uncertainties remain regarding the amounts of radionuclides released from 
the FDNPP, the experts confirm an overall consensus about the scope of the in itial 
releases. T he experts consider such uncertainties of little relevance from the perspective 
of protection against radiation exposure from food in view of the available food 
contamination data.768 
 The experts state that the status of the damaged core, in  particular its m elt progression, 
is of little relevance from the perspective of protection against radiation exposure arising 
from contaminated food products.769 
 Professor  Anspaugh notes that caesium -rich microparticles  were also discovered after 
the Cherno byl accident.770 According to all of the experts, detection of these particles is 
of little relevance for purposes of protection against radiation exposure from 
contaminated food products.771 
 Likewise, the experts agree that contamination of sediments and exis tence of "hot spo ts" 
is of little relevance from the perspective of protecting against radiation exposure from 
contaminated food products.772 
 As regards the instances of highly contaminated fish caught  within the 20 km exclusion 
zone around the FDNPP, the ex perts not e that s uch fish would not be relevant to the 
assessment of contamination of Japanese food products, as commercial fishing in that 
area is prohibited.773.As regards the possibility of highly contaminated migratory fish 
that may have spent time withi n the 20 km exclu sion zone being caught outside it and 
eaten by consumers, the experts note that such migratory fish are unlikely to be highly 
contaminated as they will not have lingered within the 20 km exclusion zone .774  
 With regard to the alleged use of imprecise caesium  detection equipment by Japanese 
inspection authorities, the experts note that while more accurate measurements can be 
determined by the germanium semiconductor detector recommended by Korea, the 
sodium io dide detector is satisfactory because the level of detection is still well below the 
intervention level of 100 Bq/kg.775 
 Regarding the argument alleging that FDNPP remains an active and ongoing source of 
contamination, the experts note that a possibility of future leaks is of little relevance for 
determinati on of food contamination, unless a significant release goes undetected, which 
is unlikely in view of Japan's water monitoring programme.776 
7.196.   With respect to the characterization of the hazard arising from the  potential presence of 
these contaminants in food p roducts, the Panel  recall s its explanation in section 2.2 above , that 
                                                
767 Experts' responses to Panel question Nos. 4,  12, 13, 17, 25, 31, 37, 39, 46, 53, 73, 104, 105, 106, 
and 109 to the experts.  
768 Experts' responses to Panel question No. 12 to the experts.  
769 Experts' responses to Panel questi on No. 13 to the experts.  
770 Professor Anspaugh's response to Panel question No . 17 to the experts . 
771 Experts' responses to Panel question No. 17 to the experts. In particular, Professor Michel states that 
due to insolubility of caesium -rich microparticles "they would survive the passage through the human gut and 
contribute less to t he intake compared to the usual soluble Caesium." Professor Michel's response to Panel 
question No. 4 to the experts.  
772 Experts' responses to Panel questions No. 39, 46, 104, 105 , and 106 to the experts.  
773 Expert Meeting Transcript, paras. 4.16, 4.89, and 4.97. 
774 Expert Meeting Transcript, para. 4.6, where Dr Thompson indicated that such a risk was "negligible". 
Dr Skuterud explained with reference to the example of mackerel, whic h is a migratory fish species, that "[t] he 
20 km zone is a small area for migr atory mackerel so the likelihood of them staying there long enough to 
obtain significant concentrations is, for biological reasons, very low." Expert Meeting Transcript, para. 3. 150.   
775 Experts' responses to Panel question No. 61 to the experts.  
776 Experts ' responses to Panel questions No. 15, 55, and 59 to the experts.  WT/DS495/R  
 
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  each of the radionuclides h as the potential to cause stochastic effects in humans – namely 
cancers. The effects of specific radionuclides dep end on the properties of the isotope, absorption 
and excretion rates, and biological half -lives. Caesium reacts in the body in the same way as  
potassium being absorbed in tissue and the blood stream, whereas strontium mimics calcium 
attaching to and remain ing in the bones. Plutonium is absorbed in body fluids, deposited in the 
liver and bones, and then travels to other organs through body fluids . Caesium has a biological 
half-life of 110 days, meaning one-eighth of the amount of caesium will remain in  the b ody within 
one year of ingestion. Strontium has a biological half -life of 35 years. While plutonium's is 
200 years.777 These properties affect n ot only the contamination concentrations in food products, 
but also the rate at which the contamination moves up t he food chain to higher order animals and 
eventually to humans, the so -called transfer factor. For example, as strontium collect in bones 
strontium in a fish would not necessarily transfer to a human consuming it if they were not eating 
the bones.778 Similar ly, the uptake of caesium will depend on the environment (freshwater, 
seawater, forest) it is deposited in.779  
7.197.   Through an understanding of the properties of these radionuclides and the ir transfer 
factors dose coefficients have been developed to determine gu ideline levels for human 
consumption. The dose coefficient was developed by the ICRP. The ICRP was guided by the 
principle that human exposure  through ingestion of man -made radionuclides should not add 
significantly to doses from background exposure and ot her sources – such as medical treatments 
and air travel.780 It is our understanding that t he development of the dose coefficient takes into 
account the ALARA principle as well as the LNT approach.  
7.198.   The first version of the Codex guideline levels for radionuc lides in food were developed by 
Codex in 1989 as a result of the Chernobyl accident in 1986. The Codex Committee on 
Contaminants in Food (CCCF ) agreed to review the guideline levels after the FDNPP accident as is 
prudent when a significant new exposure tak es place. Such review has not resulted in any 
modifications to the standards. The Codex Secretariat explained to the Panel that the CCCF 
"cons idered the revisions of the GLs for radionuclides in the CSCTFF between 2012 and 2015 and 
agreed to 'discontinue o f work on the revision of the GLs for radionuclides in the GSCTFF including 
the development of guidance to facilitate the applications and imp lementation of the GLS ' 
(REP13/CF, paragraphs 44 -54)". The CCCF further agreed "that any possible new work should be 
delayed until such time as the outcome of the review of the ICRP became available, which might 
lead to a revision of the Codex GLs in the GSCTFF ' (REP15/CF, paragraphs 128 -134)".781 Dr 
Skuterud explains that the review of the guidelines by CCCF was not tr iggered by new scientific 
information or views about risks. It was rather a result of a stronger need to obtain a better 
description of h ow the values in the guidelines were derived and how they apply relative to other 
international standards.782 The experts  all agreed that the review of the guideline  levels did not 
impact the sufficiency of the evidence on overall dose limit, individual dose  limits, or how to test 
for radionuclide contamination in food products.783 The Codex also uses the ALARA principle when 
adopting its guidelines for substances in foods.784 Both parties use all  the Codex guideline levels 
                                                
777 See Table 1 above.  
778 Korea argues that the boiling of shells and bones in the making of soups and stews could release 
strontium in a way that would make it bioavailable to human consumers.  The experts stated that studies could 
be done to test this hypothesis, but Korea did not present any. Based on general knowledge, the experts 
explained that this means of transf er of strontium was unlikely because of the known properties of calcium 
when c ooking. See experts' responses to Panel question No. 41 to the experts.  
779 Expert's responses to Panel question No. 2 to the experts. See also Dr Skuterud's response to Panel 
question No. 60 to the experts.  
780 See ICRP Publication 103: 2007 Recommendations, (Exhibit KOR -1), (Exhibit ICRP -3). Dr 
Thompson's response to Panel question No. 6 to the experts.  
781 Codex Secretariat's response to Panel questions.  
782 Dr Skuterud's response to Panel question No. 9 to the experts.  
783 Experts' responses to Panel question No.  9 to the experts.  
784 At the meeting with the experts Korea had as part of its delegation Dr A Randell who had served as 
the Secretary of the Codex until 2003. Dr Ran dell explained how Codex uses ALARA in setting guideline levels. 
However, Dr Randell referr ed to the processes for deriving limits for other conta minants (arsenic, acrylamide 
in food an d other alfatoxins ) and not specifically the radionuclide guideline lev els. E xpert Meeting Transcript, 
para. 2.25. WT/DS495/R  
 
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  for all the radionuclides except caesiu m.785 Both Japan and Korea have adopted a level of 100 
Bq/kg of caesium, which is 10  times  lower than the Codex standard.  
7.7.6.2   Levels of contaminants in Japanese food products  
7.199.   As the experts all noted, the most important way to determine radioactive contamination  
in food products is to look at actual measurements in food.786 Japan has provided the Panel with 
the results of its food  monitoring programmes ( from MAFF and MHLW  databases ). Japan has also 
provided data  collected outside the food monitoring programme, name ly from the ERD , as well as 
other sources . While Japan 's analysis in JPN -148 includes data up to and including parts of  2016, 
Japan has provided the Panel with the underlying data disaggregated by fiscal year. The data 
represent hundreds of thousands of sa mples from every prefecture in Japan since April 2011. The 
ERD data has been collected since the 1960s and thus include s information from before the 
accident.  
7.200.   In Exhibit JPN -11, Japan utilizes the food monitoring data and other data sets along with a 
series of assumptions to hypothesize that if a given food product has less than 100 Bq/kg of 
caesium in it, it will necessar ily have less than 100 Bq/kg of strontium and 10 Bq/kg of plutonium 
(the Codex guideline levels for those radionuclides).787 According to J apan, these deductions  justify 
using a conservative assumption for the maximal proportion of dose exposure resulting from 
caesium relative to other radionuclides in general food products to be 88:12 and 50:50 in marine 
products.788 In that regard, Japan has presented over four hundred matched samples tested for 
both caesium and strontium (paired samples).  Japan 's experts ha ve calculated on the basis of 
that data  that the predicted strontium -90 activity in a fish containing 100 Bq/kg of caesium would 
be less than 1 Bq/kg and the predicted plutonium activity in su ch fish would be less than 
0.13 Bq/kg.789 Japan then refers to tes ting data on fishery products as confirmatio n that no 
product containing caesium below 100 Bq/kg has been found to contain the additional 
radionuclides in excess of the guideline levels for those radionuclides.790 We now turn to examine  
whether Japan has established that the evidence supports the var ious conclusions in 
Exhibit  JPN-11.  
7.201.   Korea does not contest the accuracy or representativeness of the data for agricultural, 
livestock , and processed food products other than to argue that they make up too large o f a share 
of the monitoring data in comparis on to fishery products791 and to note the high levels in some 
specific product groups – such as mushrooms and berries. With respect to fishery products , Korea 
maintains that not enough samples from each of the fishery products  Japan is seeking market 
access for have been taken per year and prefecture.792  
7.202.   Korea further argues that Japan 's testing data contains insufficient strontium and 
plutonium test s to allow valid conclusions about the content of these additional r adionuclides in 
Japanese food containing up to 100 Bq/kg of caesium. According to Korea,  Japan 's monitoring 
programmes do not cover all the relevant fishery products .793 In particular, Korea contends that 
the samples cover only 4 of the 28 fishery products  for which Japan is challenging the import 
                                                
785 Although there is some variation for particul ar products intended for vulnerable populations, such as 
infant food. As explained in para. 2.28, above, Japan maintains radionuclide specific maximum levels, but 
ensures that exposure from relevant radionuclide s in food does not exceed 1 mSv/year by using the 100 Bq/kg 
limit for caesium as a proxy for the othe r relevant radionuclides.  
786 See e.g. Professor Anspaugh's response to Panel question No. 8 to the experts; Professor Anspaugh's 
response to Panel question No.12(a) to the experts; Ms Brown's response to Panel question No. 46 to the 
experts; Professor Miche l's response to Panel question No. 8 to the experts; Professor Michel's response to 
Panel question No. 39 to the experts; Professor Michel's response to Pa nel questi on No. 12(b) to the experts; 
Dr Skuterud's response to Panel question No. 91 to the experts ; Dr Thompson's  response to Panel question 
No. 13 to the experts.  
787 Analysis of caesium and additional radionuclides in food products from Japan and the re st of the 
world, (Exhibit JPN -11), pp. 36 -49. 
788 Japan's second written submission, para. 239. See als o Japan'scomments on Korea's comments on 
the experts' responses, paras. 98 -105;  response to Panel question No. 123.  
789 Analysis of caesium and additional r adionuclides in food products from Japan and the rest of the 
world, (Exhibit JPN -11), pp. 46 -47. 
790 Japan's first written submission, para. 267.  
791 Korea's second written submission, para. 90.  
792 Korea's second written submission, paras. 90 -92. 
793 Korea's seco nd written submission, paras. 93 -95. WT/DS495/R  
 
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  bans.794 Korea further states that certain samples used by Japan 's experts in the analysis 
constitute in fact averages of many fish and it is not clear whether the same fish was used when 
the strontium and caesium tes t results were paired.795 Japan explains that its monitoring strategy 
is risk-based and focuse s on sampling items with a higher likelihood of contamination. Japan also 
notes that there is less concern and therefore fewer samples for the seven migratory speci es.796 
With respect to the "paired" strontium and caesium tests, Japan confirms in response to a question 
from the Panel that "all data points are generated through measurements of the different 
radionuclides from the same samples."797 Japan describes how the samp les are divided and part is 
sent for testing of gamma emitting radionuclides (caesium) and other parts of the same sample 
are sent for testing of beta emitting (strontium) and alpha emitting (plutonium) radionuclides.  
Japan does this for each of the da ta sets utilized by its experts.798 
7.203.   The Panel asked Korea how many samples would be sufficient. Korea argues that "orders 
of magnitude more samples – likely amounting to approximately thousands more samples of 
strontium and other radionuclides – are required ."799 The Panel asked the experts the relevance of 
the number of samples on the reliability of Japan 's data. Dr Thompson explained that given the 
type of fish and the ecological niche, testing of one species could serve as representative for other 
similarly situated species.800 Professor  Michel and Dr Skuterud agreed that sample size was 
adequate to draw statistically valid conclusions about the levels of caesium in Japanese fish 
products, including the 28 fishery products .801 The experts agreed that sampling pla ns would with 
time, generally, focus on where one would expect to detect contamination and food products that 
could pose the most risk to consumers.802 Professor  Anspaugh was of the view that every species 
should be tested.803 The Panel notes that in Korea 's own Guidelines on Food Safety Management it 
requires the development of a sampling plan that focuses on priority foods based on consumption, 
location (near a nuclear power plant), and recent positive test results and  sets a sampling target 
at a total of 94 00 samples to be tested for caesium and iodine.804 
7.204.   The Panel is of the view that the number of samples required should be determined based 
on a sound monitoring strategy bearing in mind relevant public health questions such as which 
species are most likely t o be contaminated, are located in contaminated areas, or are the most 
consumed by the population. There is no single answer to the question how many samples are 
considered enough ; it will depend on the circumstances. However, the Panel is not of the view t hat 
the number of samples needed to reach statistically valid results upon which public health 
decisions can be based varies  depend ing on whether there has been an accident. A properly 
designed sampling plan will provide reliable data on whether radionucli des are present in food. 
More samples do not necessarily result in better predictive ability on contamination levels. The 
requirement is not to test every single fish, if we did, as Dr Skuterud notes, there would be no fish 
left to eat.805 Where releases of a particular radionuclide are not significant, finding non -detectable 
levels would not warrant the collection of more samples, but rather confirm low concentration of 
that radionuclide in food products.806 
                                                
794 Statement of Korea's experts, (Exhibit KOR -213), pp. 4 -5. 
795 Statement of Korea's experts, (Exhibit KOR -213), p. 7.  
796 Expert Meeting Transcript, para. 4.27; Japan's response to Panel question No. 7.  
797 Japan's response to Panel question No. 13.  
798 Japan's response to Panel question No. 13.  
799 Korea's response to Panel question No. 149.  
800 Dr Thompson's response to Panel question No. 63 to the experts.  
801 Professor Michel's and Dr Skuterud's responses to Panel question No. 63  to the experts.  
802 Expert Meeting Transcript, paras. 3.88 -3.89, 3.91, and 4.17.  
803 Professor A nspaugh's response to Panel question No. 47 to the experts. We note that during the 
meeting with the experts, Professor Anspaugh nuanced his answer, by saying that  "it wasn't based so much on 
science" and that he believes "it's an issue, whether or not all  the species have been measured or not." Expert 
Meeting Transcript, para. 1.204.  
804 2015 Guidelines for Food Safety Management, (Exhibit KOR -281), p. 7.  
805 Expert Me eting Transcript, para. 1.195.  
806 Professor Michel explains that:  
Regarding the number of samp les, what is the purpose of radiological protection, we need a good 
estimate of the average and of the variability (mathematically, the variance), and these 2 quan tities can be 
well defined. It is not the task to look for tiny percentiles, or extreme piece s of the distribution, because they 
don't count for the radiation exposure. If we speak of the coverage of the Codex nuclides, all the gamma -
emitting Codex nuclide s are surveyed by the gamma spectrometry and not found, so one could follow the WT/DS495/R  
 
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  7.205.   The Panel notes in that regard the consensus among t he experts that various test results 
produced by Japan provide a statistically valid support for the contention that agricultural and 
fishery products containing less than 100 Bq/kg of caesium would contain the additional Codex 
radionuclides below or far b elow their tolerance levels.807 With regard to the number of caesium 
testing samples specifically, Prof essor  Michel notes that "[t]he sampling frequency and the relative 
coverage of the different food products exceeds by far what is foreseen in Europe for th e case of 
surveillance 5 years after a nuclear accident."808   
7.206.   The number of samples that were tested for both caesium and strontium (paired samples) 
is much smaller than those that were tested for caesium or strontium alone. The Panel asked 
Japan how it der ived these pairings and Japan explain ed that either measurements of different 
radionuclides are generated from the same sample (labelled "paired samples "809), or samples from 
the ERD database are matched by using 11 pa iring criteria to identify the strontium  and caesium 
test results that can be attributed to the same sample  (labelled "matched samples ").810 It is true 
that the paired and matched samples together do not cover all of the 28 fishery products , for 
which Japan i s challenging the import bans. However,  those paired and matched samples cover 
species representative for shellfish (abalone, pacific oyster), cephalopods (common octopus), 
demersal fish (pacific cod), and pelagic fish (southern mackerel, Japanese amberjac k, cherry 
salmon) ; which are product gr oups representative for all the 28 fishery products  covered by 
Japan 's claims against Korea 's import bans. Further species have been tested for both caesium and 
                                                                                                                                                  
argument and make a tremendous list of smaller detection limits. That would produce quite a lot of paper, but 
it would not add any information.  
807 Experts' responses to Panel qu estion No. 44 to the experts. In response to Panel question No. 44 to 
the experts, Professor Anspaugh states that "[t]he test results do provide statistically valid support"; Ms Brown 
states that the data provide statistically valid support "when the data are looked at all together. There is strong 
evidence, when all the data on levels i n food and the environment and the releases are considered, that if Cs 
levels are below 100 Bq/kg, concentrations of other radionuclides will also be below the CODEX thresho lds and 
indeed will be much lower. The measurements in Japanese diets via the marke t basket and duplicate diet 
surveys show that the doses from food consumed in Japan are very low and in the few cases that Sr was 
detected, concentrations in food were very small"; Professor Michel notes that "according to my judgement and 
according to the  requirements stipulated in Europe the surveillance data provided by Japan for Cs -137 activity 
concentrations in different food categories, in market basket surveys and dupl icate diet surveys fulfil the 
requirements for the aftercare after a nuclear emerge ncy"; Dr Skuterud states that "Japan's various test 
results provide valid support for the proposition about the levels of the various radionuclides at Japanese food 
products . However, it is important to add that this conclusions is – and must be – supporte d by a 
comprehensive scientific understanding of the releases, environmental contamination levels and environmental 
behaviour of the radionuclides"; Dr Thompson concludes: " [i]n summary, taken together the data in the 
exhibits discussed above provide a str ong weight of evidence that when Cs concentrations are below 100 
Bq/kg, the other radionuclides are present at concentrations that are far below their respective thresholds,  
when they are detectable at all".  
808 Professor Michel's response to Panel question No. 45 to the experts. Other experts give similar 
responses.  
809 Japan's response to Panel question No. 123, listing (i) Japan's Ministry of Agriculture, Forestry and 
Fisherie s, "Effective dose from Market Basket Survey: Raw Data  (multiple prefectures) "(2011 -2015), (Exhibit 
JPN-133 revised); (ii) Japan's Ministry of Agriculture, Forestry and Fisheries,  "Effective dose from Nationwide 
Market Basket Survey and Duplicate Meal Sur vey: Overview of Data"(2011 -2015), (Exhibit JPN -132); (iii) 
Fukushima Duplicate Die t Survey, (Exhibit JPN -135); (iv) Japan's Ministry of Agriculture, Forestry and 
Fisheries, "Inspection Results for Radioactive Strontium in Fishery Products"(April 2011 -December 2016) (This 
is an updated version of Exhibit JPN -127) Japanese original availa ble at: 
http://www.jfa.maff.go.jp/j/housyanou/pdf/strontium_7.pdf'', (Exhibit JPN -238); (v) Japan's Ministry of 
Agriculture, Forestry and Fisheries, "Fish and shellfish moni toring data from 'Aquatic Monitoring''' published by 
Japan's Ministry of the Enviro nment"(April 2011 -June 2016), (Exhibit JPN -128); (vi) Tokyo Electric Power 
Company, "Testing results of fish products (sampled within 20km radius of F1NPS) in which strontiu m was 
detected by TEPCO" (April 2012 -December 2016), (Exhibit JPN -252); (vii) Japan 's Ministry of Agriculture, 
Forestry and Fisheries, "Comparison between Japan and Korea's radionucli de testing results on fish" 
(15 December 2014 – 15 January 2015), availab le at:  
http://www.jfa.maff.go.jp/j/kakou/export/pdf/comparison_between_japan_and_k oreas_radionuclide_testing_r
esults_on_fish.pdf, (Exhibit JPN -63).  See also Overview of Japan's food monitoring data submitted to the 
Panel, (Exhibit JPN -272).  
810 Japan's res ponse to Panel question No. 13. The Panel notes that Professor Michel, Dr Sku terud and 
Dr Thompson all agree that the sample -matching method used by Japan and explained in response to Panel 
question No. 13 is valid. In particular, Dr Thompson states that, based on her experience, the matching criteria 
used by Japan are reasonable and the  whole method robust, which, according to Dr Thompson is confirmed by 
the fact that Japan confidently matched 1,532 samples out of a total of 148,017 test results. See exper ts' 
responses to Panel question No. 110 to the experts.  WT/DS495/R  
 
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  strontium, some  of which showed  non-detectable levels of  either or both of the radionuclides.811 
Dr Thompson notes in that regard that:  
The data available in the various exhibits on levels of Sr -90 and Cs -137+134 are for 
species occupying different ecological niches, for example crustaceans, molluscs, 
demersal an d pelagic fish. These are relevant to t he assessment of doses to people 
consuming fishery products from Japan.812 
7.207.   Other experts agree that the strontium test results provided by Japan are sufficient to 
assess the risks related to strontium contamination of J apanese food products.813 The experts als o 
reject Korea 's proposition that if proper sampling had taken place, some test results will exceed 
the tolerance level for strontium -90.814 Therefore , as a general matter, the Panel  consider s Japan 's 
data serve as a sufficient basis for drawing conclusion s on levels of caesium and the other 
radionuclides in Japanese food products. The Panel make s this conclusion in light of our earlier 
findings regarding the limited releases of strontium, plutonium and other additiona l Codex 
radionuclides from the FDNPP. As Dr Skuterud puts it:  
When there are generally low contamination levels in the environment, there is no 
reason to suspect any high levels and there 's not concern for public health, then there 
is no need in the end for measurements for each and every sample species. If we 
analyse every fish for Sr, we would not have any fish left to eat.815  
7.208.   The experts explain that given the low absolute level of strontium released during the 
accident and its low proportion of all the  radionuclides released it is not unexpecte d that a 
monitoring programme would not focus on strontium and the limited number of samples was not 
detrimental to Japan 's arguments. The experts stated  that normally radionuclides that make up 
less than 10% of a n initial release would not be closely moni tored.816 Professor  Anspaugh did 
suggest that a certain percentage of all food products should be tested for strontium.817 He 
indicated that this was for public reassurance rather than out of a specific scientific nee d.818 
Professor  Michel agrees with the need t o monitor food for strontium, but finds  that from a 
radiation protection point of view,  the seawater strontium monitoring in the FDNPP port is 
sufficient.819 
7.209.   As regards plutonium, the Panel has  already noted that mi nimal quantities were released 
from the FDN PP to the environment. The Panel has reviewed  the results of tests of some  655 
samples for plutonium  239 and 240820 provided by Japan and found that none of the tested 
samples has been found to contain plutonium an ywhere near the 10 Bq/kg tolerance level.821 
Dr Thompson confirms that the data shows that the measurements of plutonium in Japanese food 
were "either not detectable or concentration were near the limits of detection."822 Professor  Michel 
notes that based on t he analysis of the terrestrial environment one can conclude that there has 
also been plutonium released into the sea. Professor Michel explains that a wealth of publications 
shows that the pre-existing isotopic ratios were  not changed significantly by what potentially came 
                                                
811 This relates to, for exam ple, samples of scallops, common sea squirt (protochordata), giant pacific 
octopus, Japanese flying squid, Alaska pollock, anchovy, Japanese sardine, round herring, pacific saury, chub 
mackerel, Japanese jack mackerel, shortfin mako shark, chum  salmon. Aga in, while not all of these species are 
subject to Japan's claims, they occupy the same ecological niches as ones that are.  
812 Dr Thompson's response to Panel question No. 64 to the experts.  
813 Experts' responses to Panel question No. 62 to the experts.  
814 Experts' responses to Panel question No. 57 to the experts.  
815 Expert Meeting Transcript, para. 1.195.  
816 Dr Thompson response to Panel questions No. 3 and 35 to the experts. Pro fessor Michel confirms 
that such a principle is frequently applied by German regula tory authorities. Expert Meeting Transcript, para. 
1.95. 
817 Expert Meeting Transcript, para. 1.7.  
818 Expert Meeting Transcript, paras. 1.204 and 3.184.  
819 Expert Meeting Transc ript, para. 3.187.  
820 The Panel notes that the data also included approximately 210 samples tested for plutonium 238.  
821 MAFF FY 2014 data on Radioactive Substances in Agricultural, Forestry and Fishery Products , 
(Exhibit -JPN-100); MAFF strontium inspection results (April 2011 -June 2016), (Exhibit -JPN-127); ERD Fisheries 
Data, (Exhibit JPN -130 (revised)); ERD Agricultural Products Data , (Exhibit JPN -131.1.). ERD Agricultural 
Products Data (milk), (Exhibit JPN -131.2) and ERD Agricultural data (other foods), (E xhibit JPN -131.3) do not 
contain plutonium tests results.  
822 Dr Th ompson's response to Panel question No.  44 to the experts.  WT/DS495/R  
 
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  from the Fukushima accide nt. According to Professor Michel "we cannot recognize a distinction"  
between what was there before and after the accident.823 Therefore, the amounts that were 
detected in food cannot necessaril y be attributed to an increase in plutonium levels in Japanese 
food products as a result of the FDNPP accident. Dr Thompson explains that the amounts of 
plutonium that could have been released from the FDNPP did not migrate as much as other 
radionuclides t o the sea, because plutonium "is very tightly bound to the soils  or sediment and not 
very mobile"  and this might explain why so little plutonium is detected in the marine 
environment .824  
7.210.   We now turn to Korea 's argument that the samples used by Japan 's exper ts to support 
their conclusions on the proportion of caesium to strontium  in food  were in fact averages of many 
individual fish. Dr Thompson explained that analysis of pooled samples is quite common in 
situations where concentrations of contaminants are ex pected to be low (as the data in the 
exhibits indicates is the c ase here)  and  that, in her view , the method used for matching Sr -90 and 
Cs-137 results was appropriate.825 Dr Skuterud indicated that Japan 's explanation of how it paired 
the samples "gives suf ficient reliability to the data" and he "did not see any signifi cant risk of bias 
in ratios estimated in JPN -11 and -148."826 The other experts concurred.827 Therefore, the Panel  
does not see that  Japan 's method of pa iring samples undermine the reasonableness or validity of 
its conclusions regarding the proportion of caesi um to strontium content in these products.  
7.211.   Korea also argues that Japan "cherry -picks" the data by not challenging the bans on 
specific species that have continually high levels of caesium an d by focusing on the period after 
2 October 2013.828 Japan respond s that it has provided to the Panel the data available for all 
agricultural, livestock , and fishery products and not only for the 28 fishery products , for which 
Japan is challenging Korea 's import bans.829 Japan further states that in selecting species that are 
of commercial importance to its industry, it has exercised its judgment regarding the effectiveness 
of its claims, pursuant to Article 3.7 of the DSU.830 Regarding the geographical scope o f the 
testing, Japan states that it has excluded from its claims f ish harvested in the 20 km exclusion 
zone around the FDNPP, because  commercial fishing in that area is prohibited and, as a result, no 
fish originating there  would be exported.831 
7.212.   With respect  to the "cherry -picking", the Panel  notes that Korea 's argument re lates to the 
28 fishery products , for which Japan is challenging Korea 's import bans. The Panel  understand s 
Korea 's concern about not accepting products that are likely to exceed its toleran ce levels. 
No Member is required to accept products that do not ac hieve its ALOP. Japan seems to 
understand this concern as well, when it limits its claims to those species that it believes contain 
radionuclides below the tolerance levels. Therefore, if th e Panel were to find that a less -trade 
restrictive alternative to the import bans exists and that it also achieves Korea 's ALOP, that finding 
will be limited to the 28 fishery products  from the 8 prefectures , covered by Japan 's claims. We 
note in that rega rd that Korea does not argue that the species Japan is not challen ging are 
somehow representative of the ones Japan is seeking market access for – in the sense that they 
are the same type (pelagic, demersal, benthic); occupy the same place in the food chai n (predator 
vs prey); are the same species, genus or classificatio n (crustacean, mollusc, etc.); or occupy the 
same ecological niche. Moreover, some of the higher strontium concentrations relative to caesium 
levels identified in the data provided by Japan  (although still well below the tolerance  levels for 
these radionuc lides)  have been found in species that Japan is challenging the import bans for, such 
as abalone.832 Finally, the Panel  recall s that when assessing Japan 's claims related to the 
additional tes ting requirements , the Panel will examine  evidence pertinent to al l products. 
                                                
823 Expert Meeting Transcript, para. 1.6.  
824 Expert Meeting Transcript, para. 1.13.  
825 Dr Thompson's response to Panel question No. 110 to the experts.  
826 Dr Skuterud's response to Panel question No. 11 0 to the experts.  
827 Professor Michel noted that the method was "adequate and valid" and that he did not see any bias. 
Professor Michel's response to Panel question No. 110 to the experts. See  also Professor Anspaugh's response 
to Panel question No. 110.  
828 Korea's response to Panel question No. 47; second written submission, paras. 107 -109. 
829 Japan's second written submission, paras. 137 -138. 
830 Japan's second written submission, paras. 140 -141. 
831 Japan's second written submission, para. 140.  
832 Data consolida ted from the MAFF Strontium Inspection Results; (ii) MOE Fish and Shellfish Data; (iii) 
TEPCO Within 20 km FDNPP Data; and (iv) the Comparison between Japan's and Korea's radionuclide testing  
results on fish, (Exhibit JPN -253).  WT/DS495/R  
 
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  Therefore, the Panel  does not see Japan 's limiting its claim regarding import bans to 28 of the 
banned fishery products as being relevant to our analysis of whether its alternative measure would 
achieve Korea 's ALOP for those products.  
7.213.   Korea al so argues that Japan 's methodology is flawed because it assumes a constant ratio 
between caesium and strontium and rests upon an incorrect application of the scaling factor 
methodol ogy contrary to the IAEA 's guidance for the use of that methodology. In its  first written 
submission Korea argues that the analytical approach adopted by Stefan Merz, Katsumi 
Shozugawa  and Geo rg Steinhauser in their paper " Analysis of Japanese Radionuclide Monitoring  
Data of Food Before and After the Fukushima Nuclear Accident " is more appropriate.833 Japan 
responds that its methodology does not assume that a constant ratio between caesium and 
strontium exists in the environment or in food products. In its dietary expos ure assessment Japan 
does assume that caesium and other radionuclides would contribute to overall annual exposure in 
a ratio of 88:12 for general food products  and 50:50 for marine products  and that 50% of all 
products contain caesium at the guideline leve l (100 Bq/kg) .834 In light of the actual results of 
Japanese testing of food products as part of its food and environmental monitoring as well as 
knowledge about the absolute release levels, this assumption is conservative and is likely to 
overestimate the c oncentration of radionuclides in most food products.835   
7.214.   Japan also provided calculations, which evaluate the data using the Merz approach  to 
demonstrate the very low likelihood of f inding strontium in excess of Codex guideline levels if 
caesium is less tha n 100 Bq/kg.  The graph below shows a Merz plot for different types of fishery 
products. The Merz plot analyse s the values of caesium and strontium test results from samples 
(or meal s), as shown by the scatter of samples. The Merz plot shows that, were an i ndividual to 
consume any one of the sampled fishery products for a year, the cumulative total dose exposure 
would remain below the 1 mSv/year diagonal line shown on  the plot. Japan has provided similar 
Merz plots for agricultural products and for the ERD d ata going back all the way to the 1960s.836 
                                                
833 Korea's first written subm ission, paras. 178 -179 (citing S. Merz, K. Shozugawa and G. Steinhauser, 
"Analysis of Japanese Radionuclide Monitoring Data of Food Before and After the Fukushima Nuclear Accident", 
ENVIRONME NTAL SCIENCE & TECHNOLOGY, Vol. 49, No. 5 (2015), (Exhibit KOR -2) ("Merz et al.")).  
834 Japan's second written submission, para. 239. See also Japan's comments on Korea's comments on 
the experts' responses, paras. 98 -105; response to Panel question No. 123.  
835 Experts' responses to Panel question No. 44 to the experts. For instance, in her response to Ms 
Brown noted that:  
there is strong evidence, when all the data on levels in food and the environment and the 
releases are considered, that if Cs levels are be low 100 Bq/kg, concentrations of other 
radionuclides will also be below the CODEX thresholds and indeed will be much lower. The 
measurements in Japanese diets via the market basket and duplicate diet surveys show that the 
doses from food consumed in Japan are very low and in the few cases that Sr was detected, 
concentrations in food were very small";  
See also experts' responses to Panel question No. 77 to the experts.  
836 See Merz plot and calculations based on data in Exhibit JPN -253, (Exhibit JPN -256); Mer z plot and 
calculations based on "Market Basket Survey: Raw Data" [CONFIDENTIAL], (Exhibit JPN -258); Merz plot and 
calculations based on "Fukushima Duplicate Diet Survey: Raw Data Multiple Prefectures" and "Fukushima 
Duplicate Diet Survey: Raw Data" [CONFI DENTIAL], (Exhibit JPN -259); Merz plot and calculations based on 
"Full data underlying Examination and Analysis of Radioactive Substances in Agricultural, Forestry and Fishery 
Products for FY 2014", (Exhibit JPN -260); Merz plot and calculations based on ER D Data for Agricultural 
Products, (Exhibit JPN -261); and Merz plot calculations based on ERD milk data, (Exhibit JPN -261.2).  WT/DS495/R  
 
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  Figure 6: Merz Plot for Fishery Products (all data publicly available before 28 Sept 2015)  
 
Source: Japan 's slides present ed at the Expert Meeting, (Exhibit JPN -245), p. 2.  
 
7.215.   The Panel asked the experts about the r elevance of Korea 's arguments with respect to the 
ratio and the scaling factor methodology and whether they called into question the reliability of the 
analysis in JPN -11 and JPN-148. The experts all concurred that Japan 's methodology appropriately 
account s for strontium releases and likely overestimates strontium 's contribution to any given food 
product. As Dr Skuterud puts it:  
Japan 's way of including the other radionuclides in deriving the permissible level for 
caesium adds conservatism to their approach , it is more conservative than the 
approaches in Europe after Chernobyl where they set the limits for caesium based on 
1 mSv/y and this totally disregarded the contribution fr om strontium for instance.837 
7.216.   Professor  Anspaugh finds the method "simple and elega nt" and notes that "[i]t does not 
have to be called by another name or justified by some textbook."838 Dr Skuterud explains that he 
does not consider that Japan really applied t he scaling factor methodology. In his view:  
Rather Japan have chosen some conser vative ratios for potential contamination levels 
by the other radionuclides relative to caesium, based on information on composition of 
releases and on known environmental beh aviour of the nuclides – and 
checked/validated against available monitoring data … This is in principle something 
else than the Scaling approach. This ratio approach is appropriate, not for estimating 
radionuclides levels in foods, but for ensuring that th e chosen intervention level is 
conservative enough.839 
7.217.   Ms Brown also finds the meth od to be appropriate.840 Meanwhile, Prof essor  Michel notes 
that: 
If the Scaling Factor methodology is combined with estimating the potential exposure 
due to consumption of Sr -90 using the absolute activity concentrations of Sr -90 in the 
foodstuffs it is adeq uate. The latter demonstrate that there is only a very small 
contribution by Sr -90. Therefore, the Scaling Factor methodology is applicable even if 
                                                
837 Expert Meeting Transcript, para. 3.14.  
838 Professor Anspaugh's response to Panel question No. 82 to the experts.  
839 Dr Skuterud's r esponse to Panel question No. 82 to the experts. See also Expert Meeting Transcript, 
para. 4.59.  
840 Ms Brown's responses to Panel question Nos. 82 and 83 to the experts.  
WT/DS495/R  
 
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  there is a strong scatter i n the Sr -90/Cs -137 ratios and the correlation used is 
weak.841  
7.218.   The Panel asked the  IAEA whether it had specific rules for the application of the scaling 
factor methodology. The IAEA replied that requirements for use of the scaling factor methodology 
are not addressed in the IAEA safety standards.842 
7.219.   We further note that the data provided by Japan varies depending on the time -period and 
products covered. For example, Japan 's food monitoring programme contains caesium test results 
starting in April 2012, although Japan is challenging consistency of the 2011 additional testing 
requirements im posed on agricultural products, processed foods and food additives. Some caesium 
test results are available for 2011 from the ERD database. However, the ERD  database largely 
differs from the food monitoring programme in that it has not been specifically de signed to address 
contamination of food products following the FDNPP accident. Moreover, i t also does not contain 
test results for processed foods and food additives and the data on strontium and plutonium  is 
even more limited . As a result, the Panel is  of the view that at the time of adoption of the 2011 
additional testing requirements, there was insufficient data available to support Japan 's 
assumption with  respect to the content of caesium and additional Codex radionuclides in Japanese 
products. The Pane l further note s that more data became available with time, in particular after 
April 2012, when test results for other than fishery products were included i n Japan 's monitoring 
programme. In this regard, the Panel  also recall s its findings in section 7.6 above  that there was 
sufficient scientific inform ation to conduct a risk assessment for the product specific import bans 
imposed in 2012 and for both the blanket import bans and the additional testing requirement s 
imposed in 2013.843 Therefore, the Panel can reasonably conclude that for Alaska pollock and 
Pacific cod from the relevant prefectures from 2012 and for the rest of Japanese food products 
from 2013 there is sufficient reliable data upon which to base concl usions about the levels of 
radionuclides in Japanese food products.  All the more, the same co nclusion can be drawn with 
regard to information available as of establishment of the Panel with regard to maintenance of all 
measures.   
7.220.   Now that the Panel  has determined that the data provided by Japan can serve as a 
reasonable basis for conclusions, the Panel  turns to what the data actually shows. The Panel has 
examined the caesium testing data available for all Japanese food products, including the 
28 fishery  products  from the relevant prefectures. For the product -specific bans the following 
tables show the ratio of the number of samples exceeding the threshold level (100 Bq/ kg of 
caesium) to the number of total samples (excess ratio)  in 2012 – the year the me asures were 
adopted , and in each subsequent year (2013, 2014, and 2015)  – for each species and relevant 
prefecture.  The Panel notes that this data refers to samples where the levels of radionuclides 
exceeded the benchmark level. A "0" entry should not be c onstrued as meaning that no 
radionuclides were detected at all, only that the levels were below the benchmark level. The "total" 
row reports the total number of samples, the total number of samples in excess of 100 Bq/kg, and 
the weighted averages of the e xcess ratio percentages, respectively.  
                                                
841 Professor Michel's response to Panel question No. 82 to the experts. Ms B rown agrees with Professor 
Michel and states that the methodology used by Japan to derive the maximal level of caesium and other 
radionuclides is appropriate. Expert Meeting Transcript, para. 4.58.  
842 IAEA's responses to Panel question Nos. 1 and 2.  
843 See p ara. 7.108  above.  WT/DS495/R  
 
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  Table 13: Excess ratios for Alaska pollock and Pacific cod subject to product -specific 
import bans (2012)  
Legend: # - number of samples; > - number of samples in excess of 100 bg/kg; % - excess ratio percentage.  
  Fukush ima Miyagi  Ibaraki  Iwate  Aomori  
Fishery 
Products  # > % # > % # > % # > % # > % 
Pacific cod 
(Gadus 
macrocephalus)  201 40 19.9 319 5 1.56 128 7 5.46 305 0 0 291 2 0.68 
Alaska pollock 
(Theragra 
chalcogramma)  60 1 1.66  
Total  261 41 15.7 319 5 1.56 128 7 5.46 305 0 0 291 2 0.68 
Source: FAJ Caesium Monitoring Data of fisheries products (Exhibit JPN -72). 
 
7.221.   With respect to the blanket import ban, imposed in late 2013, the Panel has reviewed the 
data for all 28 fishery products (including Alaska pollock and Pac ific cod) from each of the relevant 
prefectures to see how many samples tested  were in excess of the benchmark level for caesium.  
  
   WT/DS495/R  
 
- 137 - Table 14: Excess ratios for 28 banned fisher y products (2013)  
Legend: # - number of samples; > - number of samples in excess  of 100 bg/kg; % - excess ratio percentage.  
  Fukushima  Miyagi  Ibaraki  Iwate  Gunma  Aomori  Tochig
i Chiba  
Fishery products  # > % # > % # > % # > % # > % # > % # > % # > % 
Abalone (Haliotis spp.)  67 0 0 11 0 0 13 0 0 0 0 0 0 0 0 1 0 0 0 0 0 2 0 0 
Alaska po llock (Theragra chalcogramma)  79 0 0 21 0 0 3 0 0 68 0 0 0 0 0 11 0 0 0 0 0 0 0 0 
Albacore (Thunnus alalunga)  0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 31 0 0 
Alfonsino (Beryx splendens)  0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 35 0 0 
Anchovy (Engrauli s japonicus)  32 0 0 0 0 0 16 0 0 1 0 0 0 0 0 0 0 0 0 0 0 69 0 0 
Bigeye tuna (Thunnus obesus)  0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 10 0 0 
Blue shark (Prionace glauca)  0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Bluefin tuna (Thunnus orientalis)  0 0 0 0 0 0 4 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 
Chestnut octopus (Octopus conispadiceus)  205 0 0 3 0 0 18 0 0 7 0 0 0 0 0 3 0 0 0 0 0 1 0 0 
Chub mackerel (Scomber japonicus)  40 0 0 1 0 0 0 0 0 8 0 0 0 0 0 1 0 0 0 0 0 34 0 0 
Chum salmon (Oncorhynchus ket a) 62 0 0 5 0 0 8 0 0 110 0 0 0 0 0 27 0 0 0 0 0 0 0 0 
Common octopus (Octopus vulgaris)  52 0 0 3 0 0 16 0 0 4 0 0 0 0 0 0 0 0 0 0 0 1 0 0 
Common sea squirt (Halocynthia roretzi)  6 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Giant Pacific octopus (Par octopus dofleini)  131 0 0 10 0 0 0 0 0 67 0 0 0 0 0 15 0 0 0 0 0 0 0 0 
Japanese amberjack (Seriola quinqueradiata)  41 0 0 0 0 0 16 0 0 76 0 0 0 0 0 2 0 0 0 0 0 25 0 0 
Japanese flying squid (Todarodes pacificus)  115 0 0 6 0 0 2 0 0 69 0 0 0 0 0 22 0 0 0 0 0 5 0 0 
Japanese jack mackerel (Trachurus 
japonicus)  98 0 0 1 0 0 13 0 0 5 0 0 0 0 0 0 0 0 0 0 0 41 0 0 
Japanese sardine (Sardinops melanostictus)  36 0 0 1 0 0 10 0 0 5 0 0 0 0 0 5 0 0 0 0 0 47 0 0 
Pacific cod (Gadus macrocephalus)  258 6 2.32 140 0 0 329 2 0.6 448 0 0 0 0 0 740 0 0 0 0 0 0 0 0 
Pacific oyster (Crassostrea gigas)  0 0 0 11 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Pacific saury (Cololabis saira)  0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Salmon shark (Lamna ditropis)   0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Scallop (Mizuhopecten yessoensis)  0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Skipjack tuna (Katsuwonus pelamis)  1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 49 0 0 
Southern mackerel (Scomber australasi cus) 49 0 0 2 0 0 8 0 0 64 0 0 0 0 0 7 0 0 0 0 0 11 0 0 
Striped marlin (Kajikia audax)  0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0  
  WT/DS495/R  
 
- 138 -   Fukushima  Miyagi  Ibaraki  Iwate  Gunma  Aomori  Tochig
i Chiba  
Swordfish (Xiphias gladius)  0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Yellowfin tuna (Thunnus albacares).  0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 
Total  1272  6 0.47 219 0 0 456 2 0.43 932 0 0 0 0 0 834 0 0 0 0 0 363 0 0 
Source: FAJ Caesium Monitoring Data of fisheries products, (Exhibit JPN -72). 
 
Table 15: Excess ratios for 28 banned fishery products (2014)  
Legend: # - number of samples; > - number of samples in excess of 100 bg/kg; % - excess ratio percentage.   
Fukushima  Miyagi  Ibaraki  Iwate  Gunma  Aomori  Tochigi  Chiba  
Fishery products  # > % # > % # > % # > % # > % # > % # > % # > % 
Abalone (Haliotis spp.)  98 0 0 33 0 0 10 0 0 0 0 0 0 0 0 1 0 0 0 0 0 4 0 0 
Alaska pollock (Theragra chalcogramma)  88 0 0 38 0 0 2 0 0 61 0 0 0 0 0 14 0 0 0 0 0 0 0 0 
Albacore (Thunnus alalunga)  0 0 0 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Alfonsino (Beryx splendens)  0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 27 0 0 
Anchovy (Engraulis japonicus)  21 0 0 5 0 0 5 0 0 0 0 0 0 0 0 1 0 0 0 0 0 29 0 0 
Bigeye tuna (Thunnus obesus)  0 0 0 6 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Blue shark (Prionace glauca)  0 0 0 5 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Bluefin tuna (Thunnus orientalis)  0 0 0 0 0 0 4 0 0 3 0 0 0 0 0 0 0 0 0 0 0 2 0 0 
Chestnut octopus (Octopus conispadiceus)  205 0 0 5 0 0 32 0 0 6 0 0 0 0 0 1 0 0 0 0 0 1 0 0 
Chub mackerel (Scomber japonicus)  52 0 0 17 0 0 0 0 0 3 0 0 0 0 0 2 0 0 0 0 0 3 0 0 
Chum salmon (Oncorhynchus keta)  50 0 0 31 0 0 9 0 0 104 0 0 0 0 0 32 0 0 0 0 0 0 0 0 
Common octopus (Octopus vulgaris)  57 0 0 0 0 0 13 0 0 4 0 0 0 0 0 0 0 0 0 0 0 5 0 0 
Common sea squirt (Halocynthia roretzi)  1 0 0 53 0 0 0 0 0 71 0 0 0 0 0 1 0 0 0 0 0 0 0 0 
Giant Pacific octopus (Paroctopus dofleini)  107 0 0 5 0 0 3 0 0 49 0 0 0 0 0 5 0 0 0 0 0 0 0 0 
Japanese amberjack (Seriola quinqueradiata)  39 0 0 6 0 0 11 0 0 68 0 0 0 0 0 1 0 0 0 0 0 2 0 0 
Japanese flying squid (Todar odes pacificus)  88 0 0 19 0 0 3 0 0 82 0 0 0 0 0 30 0 0 0 0 0 3 0 0 
Japanese jack mackerel (Trachurus japonicus)  124 0 0 18 0 0 14 0 0 4 0 0 0 0 0 0 0 0 0 0 0 8 0 0 
Japanese sardine (Sardinops melanostictus)  14 0 0 3 0 0 2 0 0 1 0 0 0 0 0 0 0 0 0 0 0 8 0 0 
Pacific cod (Gadus macrocephalus)  262 0 0 142 0 0 301 0 0 179 0 0 0 0 0 619 0 0 0 0 0 0 0 0 
Pacific oyster (Crassostrea gigas)  2 0 0 329 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Pacific saury (Cololabis saira)  0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0  
   WT/DS495/R  
 
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Fukushima  Miyagi  Ibaraki  Iwate  Gunma  Aomori  Tochigi  Chiba  
Fishery products  # > % # > % # > % # > % # > % # > % # > % # > % 
Salmon shark (Lamna ditropis)   1 0 0 7 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Scallop (Mizuhopecten yessoensis)  0 0 0 68 0 0 0 0 0 0 0 0 0 0 0 44 0 0 0 0 0 0 0 0 
Skipjack tuna (Katsuwonus pelamis)  0 0 0 4 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 4 0 0 
Southern mackerel (Scomber australasicus)  58 0 0 7 0 0 2 0 0 72 0 0 0 0 0 7 0 0 0 0 0 6 0 0 
Striped marlin (Kajikia audax)  0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Swordfish (Xiphias gladius)  0 0 0 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Yellowfin tuna (Thunnus albacares).  0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Total  1267  0 0 805 0 0 414 0 0 707 0 0 0 0 0 758 0 0 0 0 0 1
0
2 0 0 
Source: FAJ Caesium Monitoring Data of fisheries products (Exhibit JPN -72). 
 
Table 16: Excess ratios for 28 banned fishery products (2015)  
Legend: # - number of samples; > - number of samples in excess of 100 bg/kg; % - excess ratio percentage.  
  Fukushima  Miyagi  Ibaraki  Iwate  Gunma  Aomori  Tochigi  Chiba  
Fishery products  # > % # > % # > % # > % # > % # > % # > % # > % 
Abalone (Haliotis spp.)  73 0 0 43 0 0 7 0 0 0 0 0 0 0 0 2 0 0 0 0 0 5 0 0 
Alaska pollock (Theragra chalcogramma)  75 0 0 34 0 0 8 0 0 57 0 0 0 0 0 2 0 0 0 0 0 0 0 0 
Albacore (Thunnus alalunga)  0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Alfonsino (Beryx splendens)  0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 24 0 0 
Anchovy (Engraulis japonicus)  33 0 0 3 0 0 8 0 0 1 0 0 0 0 0 0 0 0 0 0 0 3 0 0 
Bigeye tuna (Thunnus obesus)  0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Blue shark (Prionace glau ca) 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Bluefin tuna (Thunnus orientalis)  0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 
Chestnut octopus (Octopus conispadiceus)  172 0 0 15 0 0 51 0 0 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Chub mackerel (Scomber jap onicus)  56 0 0 8 0 0 4 0 0 17 0 0 0 0 0 1 0 0 0 0 0 8 0 0 
Chum salmon (Oncorhynchus keta)  57 0 0 13 0 0 10 0 0 108 0 0 0 0 0 6 0 0 0 0 0 1 0 0 
Common octopus (Octopus vulgaris)  162 0 0 0 0 0 15 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2 0 0 
Common sea squirt (Halocy nthia roretzi)  6 0 0 10 0 0 0 0 0 182 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Giant Pacific octopus (Paroctopus dofleini)  119 0 0 7 0 0 1 0 0 44 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Japanese amberjack (Seriola quinqueradiata)  22 0 0 9 0 0 16 0 0 77 0 0 0 0 0 1 0 0 0 0 0 4 0 0  
  WT/DS495/R  
 
- 140 -   Fukushima  Miyagi  Ibaraki  Iwate  Gunma  Aomori  Tochigi  Chiba  
Fishery products  # > % # > % # > % # > % # > % # > % # > % # > % 
Japanese flying squid (Todarodes pacificus)  80 0 0 43 0 0 10 0 0 69 0 0 0 0 0 13 0 0 0 0 0 1 0 0 
Japanese jack mackerel (Trachurus 
japonicus)  126 0 0 26 0 0 12 0 0 5 0 0 0 0 0 0 0 0 0 0 0 5 0 0 
Japanese sardine (Sardinops melanostictus)  13 0 0 7 0 0 2 0 0 11 0 0 0 0 0 0 0 0 0 0 0 5 0 0 
Pacific cod (Gadus macrocephalus)  300 0 0 129 0 0 57 0 0 116 0 0 0 0 0 499 0 0 0 0 0 0 0 0 
Pacific oyster (Crassostrea gigas)  4 0 0 296 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Pacific saury (Cololabis saira)  0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 2 0 0 
Salmon shark (Lamna ditropis)   0 0 0 2 0 0 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Scallop (Mizuhopecten yessoensis)  0 0 0 88 0 0 0 0 0 0 0 0 0 0 0 50 0 0 0 0 0 0 0 0 
Skipjack tuna (Katsuwonus pelamis)  0 0 0 3 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 3 0 0 
Southern mackerel (Scomber australasicus)  62 0 0 3 0 0 2 0 0 83 0 0 0 0 0 1 0 0 0 0 0 9 0 0 
Striped marlin (Kajikia audax)  0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Swordfish (Xiphias gladius)  0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 
Yellowfin tuna (Thunnus albacares).  0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 
Total  1360  0 0 741 0 0 206 0 0 773 0 0 0 0 0 575 0 0 0 0 0 74 0 0 
Source: FAJ Caesium Monitoring Data of fisheries products (Exhibit JPN -72). 
 
 
 
 
 
 
 
  WT/DS495/R  
 
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  7.222.   The data for 2013 show that few samples of the relevant fishery products  have been found 
to contain caesium in excess of the 100 Bq/kg tolerance level. The data also show a steady decline 
of caesium concentration levels over the time the measures w ere in p lace as evidenced in the 
tables for 2014 and 2015, the two years after the blanket import ban was imposed prior to the 
Panel 's establishment.  
7.223.   Korea is correct that for some of the 28 fishery products  in certain prefectures there are no 
samples. Ja pan has argued that samples from representative species can be used to assess the 
potential radionuclide contamination in those products. As discussed  above, the experts generally 
agree. Dr Thompson explains that following "a detailed review of the data" s he "foun d data for 
most of the 28 species" and that "[f]or the species not specifically analysed, JPN -43 contains 
representative data (e.g. similar ecological niches; migratory or not)."844 Dr Skuterud, and 
Professor  Michel concurred.845 Professor  Anspaugh was  of the view that all species should be 
tested.846 The Panel has also reviewed the test results for strontium and plutonium for the relevant 
time-period. All test results provided to the Panel, including for the 28 fishery products from the 
8 prefectures, we re well below the tolerance levels for both radionuclides, if detected at all.847 
7.224.   As regards all food product categories, for which Japan is challenging the additional testing  
requirements , the Panel  notes that the levels of caesium in products have been con tinuously 
declining. In fiscal year 2012 the percentage was 0.86%, in fiscal year 2013 0.32%, and in fiscal 
year 2014 0.18%.848 The reviewed data support Japan 's contention that for all but two food 
catego ries (game meat and wild plants and wild edible fungi849), the proportion of samples 
exceeding the 100 Bq/kg tolerance level was less than 1%, including with regard to the Fukushima 
prefecture.850 The Panel also finds the data to support Japan 's contention tha t in the two quarters 
immediately preceding establish ment of the Panel, the majority of Japanese food products 
contained between 0 and 25 Bq/kg of caesium.851 
Table 17: Food monitoring result (annual transition of rate of exceeding standard limits) 
(FY2012 a nd FY 2013)  
All Prefectures  2012.04~2013.3  2013.04~20 14.3 
Number of 
samples  No. of 
samples 
more than 
limit Excess 
ratio  Number of 
samples  No. of 
samples 
more than 
limit Excess 
ratio  
Grains  18,998  123 0.65%  12,962  87 0.67%  
Vegetables  19,004  7 0.04%  20,676  0 0.00%  
Fruit 5,635  15 0.27%  5,331  0 0.00%  
Edible Fungi 
(cultivated)  4,394  328 7.46%  3,956  9 0.23%  
Fishery Products 
(other than 
freshwater)  18,658  831 4.45%  20,261  192 0.95%  
Fishery products 
(freshwater)  3,343  242 7.24%  3,394  109 3.21%  
Cattle meat  187,176  6 0.00%  231,072  0 0.00%  
Livestock products 
(other than cattle 
meat)  2,148  2 0.09%  2,265  0 0.00%  
                                                
844 Dr Thompson's response to Panel question No. 63 to the experts.  
845 Dr Skuterud's and Professor Michel's responses to Panel questi on No. 63 to the experts.  
846 Professor Anspaugh's response to Panel question  No. 63 to the experts. Expert Meeting Transcript, 
para. 1.204. During the meeting with the experts, Professor Anspaugh clarified his answer, by saying that "it 
wasn't based so much  on science" and that he believes "it's an issue, whether or not all the sp ecies have been 
measured or not". Expert Meeting Transcript, para. 1.204.  
847 See MAFF strontium inspection results (April 2011 -June 2016), (Exhibit -JPN-127); Japan's Ministry of 
Agriculture, Forestry and Fisheries, "Fish and shellfish monitoring data from ' Aquatic Monitoring' published by 
Japan's Ministry of the Environment", ("MOE Fish and Shellfish Data") (April 2011 -June 2016), (Exhibit JPN -
128);  Tokyo Electric Power Company, "Tes ting results of fish products (sampled within 20km radius of F1NPS) 
in whic h strontium was detected by TEPCO" (April 2012 –March 2016) (This is an updat ed version of 
Exhibit  JPN-97), (Exhibit JPN -129).  
848 MAFF overview of food monitoring results (April 2012 – March 2016), (Exhibit JPN -155).  
849 MAFF overview of food monitoring results  (April 2012 – March 2016), (Exhibit JPN -155).  
850 MHLW Caesium Monitoring Data of Food Products (April 2012 – July 2016), (Exhibit JPN -157).  
851 MHLW Caesium Monitoring Data of Food Prod ucts (April 2012 – July 2016), (Exhibit JPN -157).   WT/DS495/R  
 
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  All Prefectures  2012.04~2013.3  2013.04~20 14.3 
Number of 
samples  No. of 
samples 
more than 
limit Excess 
ratio  Number of 
samples  No. of 
samples 
more than 
limit Excess 
ratio  
Game meat  1,255  493 39.28%  1,411  417 29.55%  
Wild plants and wild 
edible fungi  2,474  274 11.08%  3,657  186 5.09%  
Milk ・Infants use  5,215  0 0.00%  4,973  0 0.00%  
Tea and Drinking 
water  1,675  13 0.78%  1,142  0 0.00%  
Processed foods  8,505  69 0.81%  9,917  25 0.25%  
Unclassified  0 0  0 0  
Total 278,480  2,403  0.86%  321,017  1,025  0.32%  
Source: MAFF overview of food monitoring re sults (April 2012 –March 2016), (Exhibit JPN -155).  
 
Table 18: Food monitoring result (annual transition of rate of exceeding standard limits) 
(FY2014 and FY 2015)  
All Prefectures  2014.04~2015.3  2015.04~2016.3  
Number of 
samples  No. of 
samples 
more than 
limit Excess 
ratio  Number of 
samples  No. of 
samples 
more than 
limit Excess 
ratio  
Grains  6,094  2 0.03%  5,135  5 0.10%  
Vegetables  17,520  0 0.00%  12,184  0 0.00%  
Fruit 4,147  0 0.00%  3,374  0 0.00%  
Edible Fungi 
(cultivated)  4,440  8 0.18%  4,428  3 0.07%  
Fishery P roducts 
(other than 
freshwater)  21,328  50 0.23%  18,939  0 0.00%  
Fishery products 
(freshwater)  3,251  50 1.54%  2,385  14 0.59%  
Cattle meat  235,583  0 0.00%  274,071  0 0.00%  
Livestock products 
(other than cattle 
meat)  1,834  0 0.00%  1,544  0 0.00%  
Game meat  1,403 349 24.88%  764 167 21.86%  
Wild plants and wild 
edible fungi  4,133  98 2.37%  4,029  87 2.16%  
Milk (Infants use ) 4,461  0 0.00%  3,666  0 0.00%  
Tea and Drinking 
water  804 0 0.00%  636 0 0.00%  
Processed foods  9,220  8 0.09%  8526 
  15 0.18%  
Unclassified  0 0  0 0  
Total 314,218  565 0.18%  340,311  291 0.09%  
Source: MAFF overview of food monitoring results (April 2012 – March 2016), (Exhibit JPN -155).  
 
7.225.   There is a consensus among the experts that the various test results produced by Japan 
provide a statistically v alid support for the conclusion  that agricultural and fishery products 
containing less than 100 Bq/kg of caesium would contain the additional Codex radionuclides below 
or far below their toler ance levels.852 The Panel recall s that n one of the test results pr ovided to the 
panel showed strontium or plutonium content in excess of the tolerance level s.853 Dr Skuterud 
explains that in light of the data combined with the knowledge of the relatively low r eleases of 
strontium and the low food chain transfer of the radi onuclide, "it is difficult to imagine strontium 
levels exceeding the Codex [guideline levels] in areas w here agricultural production and fisheries 
are not restricted" .854 Professor Michel explai ns in a similar vein that "the absolute activity 
                                                
852 Experts' responses to Pa nel question No. 44 to the experts.  
853 MAFF, MOE, TEPCO data on paired caesium and strontium testing, (Exhibit JPN -240). Although 
Exhibit JPN -240 covers samples tested both before an d after the establishment of the Panel, the Panel relied on 
the data availa ble for the period up until its establishment, using the post -establishment test results only for 
confirmation purposes. The value of 14 Bq/kg is thus overall the highest measured c oncentration of strontium 
in the whole dataset. See paras. 7.205  through 7.209  above.  
854 Dr Skuterud's response to Panel question No. 57 to the experts.   WT/DS495/R  
 
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  concentrations of Sr-90 are on the average about two orders of magnitude lower than the Cs -137 
and that Sr -90 is of much lower relevance for the radiation exposure than Cs -137".855 Professor 
Michel further sta tes that "(independent of the exact number attributed to the Sr -90/Cs -137 ratio) 
… complying with the 100 Bq/kg limit for Cs -137 will certainly guarantee that the limits for the 
other radionuclides will also comply with the regulations".856 Ms Brown also not es that "[i]t is not 
likely, based on the information available on the releases from the accident and the available 
monitoring data in food and the environment, that there are foo d samples that would exceed 
100 Bq/kg Sr -90".857 
7.226.   The Panel  recall s that its assessment is not limited to the testing data, but encompasses 
the totality of the evidence, including the knowledge about releases of radionuclides from the 
FDNPP, as well as the uptake of radionuclides by the relevant species. Based on that evidence, 
includ ing the knowledge of strontium and plutonium releases from the F DNPP and their uptake 
pathways and transfer factors, the Panel  conclude s that Japan has established that if a food 
product contains less than 100 Bq/kg of caesium (both Cs -134 and CS -137) it will necessarily 
contain amounts of strontium, plutonium and othe r radionuclides in amounts lower than the Codex 
guideline levels. The da ta from the time period subsequent to the establishment of the Panel 
confirm the  Panel 's assessment that the pre -establishment data demonstrate a declining trend in 
the presence of rad ionuclides in food.  The Panel  further note s that Japan currently restric ts 
distribution of certain products from certain areas due to high potential for containing 
radionuclides.858 Existence of such restrictions is an indication to the Panel that, in Japan 's own 
assessment, these specific products are likely to be contaminated  in excess of the established 
tolerance levels . However, the existence of such restrictions is not sufficient to disprove  Japan 's 
assumption that products containing less than 100 Bq/kg  of caesium would also contain the other 
radionuclides  below  Korea 's tolerance limits. Likewise, the absence of such restrictions , in and of 
itself, is not dispositive of whether Japan 's proposed alternative measure achieves  Korea 's ALOP . 
The Panel  recall s that Japan does not challenge many product -specific bans that Korea cur rently 
has in place. However, the Panel recognises that this situation is fluid and will change. Because of 
this, and because Japan has not limited its claim on the additional testing requirements to any 
specific products, the Panel 's conclusions with resp ect to these measures are based on the general  
contamination levels of all food products, which may contribute to the exposure dose.859 
7.227.   The next step in determining whether testing for 1 00 Bq/kg of caesium alone would 
achieve Korea 's ALOP, is to assess the p otential dietary exposure to Korean consumers to 
radionuclides in food products and the contribution of Japanese products to their overall exposure 
on an annual basis.  
7.7.6.3   Extent of dietar y exposure  
7.228.   Japan calculated potential dietary exposure to Korean consumers by applying the following 
assumptions  that it relied  on to derive its own 100 Bq/kg of caesium tolerance level for food 
consumed in Japan : that 50% of all food consumed is contamina ted at the maximum guideline  
levels, that the ratio of dose expos ure was 88:12 caesium to other radionuclides  in general food 
products and 50:50 in marine products . The conservative nature of the assumption was confirmed 
by a duplicate diet survey conducte d in Fukushima .860 Under the duplicate diet survey for 
Fukushima, d uplicate meals were gathered in different households in Fukushima and sampled for 
                                                
855 Professor Michel's response to Panel question No. 37 to the experts.  
856 Professor Michel 's response to Panel question  No. 44 to the experts.  
857 Ms Brown's response to Panel question No. 57 to the experts. According to Ms Brown:  
[I]t is not possible to say that there is a zero probability that a food sample  will not be found with a 
Sr-90 conce ntration >100 Bq/kg. However,  in this case, it is highly likely that it would also have a 
concentration of Cs > 100 Bq/kg based on the evidence of a high Cs:Sr -90 ratio that has been observed in the 
initial release, the environment and in food.  
858 Japan doe s not challenge a variety of product specific bans. See paras. 2.104  to 2.106.  
859 Nevertheless, the Panel expects that products subject to Japanese internal restrictio ns are not 
currently being exported to Korea. See Japan's response to Panel question No. 22, paras. 112 -115. 
860 Japan's first written submission, para. 357, where Japan refers to Report of the Committee on 
Radionuclides in Foods (Exhibit JPN -40.b), pp. 6, 8 , 16, 30 -31. Japan's scientific response to Korea's 
arguments in its first written submission, (Exhibit JPN -148), pp. 19 -21; A Framework for considerin g radiation 
levels in Japanese food, Graphics, (Exhibit JPN -152), pp. 1 -3.  See also Japan's comments on Korea's 
comments on the experts' responses, paras. 98 -105; response to Panel question No. 123.   WT/DS495/R  
 
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  caesium, strontium and plutonium.861 This data showed that even assuming a diet exclusively 
based on meals typi cally eaten in Fukushima the contamination levels would remain be low the 
1 mSv/year committed dose limit. Japan demonstrated the same for a diet completely comprised 
of Japanese marine products.862 
7.229.   Korea argue s that Japan 's method ology  does not take into acc ount the particularities of the 
Korean diet.863 Japan avers that th e two diets are sufficiently similar.864 In particular, Japan argues 
that Korean and Japanese consumers use the same basic ingredients and cooking practices and 
that both diets include the cons umption and utilization of the whole fish, including the bones. 
Japan elaborates that similarities in both diets are further revealed by a comparison of statistical 
information on average daily food consumption in Korea and Japan, where the proportion of 
different food items in both countries ' diets is very similar, as both include significant amounts of 
rice and fisheries products.865 The Panel asked Korea to explain the specific differences between 
the Fukushima diet utilized by Japan and the typical Korean  diet that would be relevant to  an 
assessment of exposure to  radionuclide contamination. The Panel also asked Korea how it 
accounted for these dietary differences in the formulation of its measures. Korea indicat es that 
Koreans enjoy having fermented roe o r fish entrails and stews boiled over a long period of time 
with fish bone, head, or skin. Korea further explain s that Koreans also enjoy boiling or cooking the 
outer shells of seafood with meat in soups and stews.866 The Panel notes that although Korea 
explained the particularities of the Korean diet, it failed to specif ically address how this was 
different than the duplicate diet used by Japan or how the differences impacted a dietary exposure 
assessment .867  
7.230.   With respect to Korea 's arguments about the effect s of boiling on making certain 
radionuclides more bioavailable or  increasing exposure from the eating of bones, the Panel asked 
the experts whether these elements would have an effect on Japan 's analysis. Based on the 
understanding that strontium acts like  calcium, they explained that boiling would not result in a 
release of strontium into broth or make it more bioavailable.868 They did note that if consumers ate 
the shell  or bones  they would be exposed to more strontium than those who do not.869 In 
particular,  Dr Thompson explained that:  
[A]lthough few studies have measured the proportion of Sr -90 transferred 
from fish bones to broth during boiling (e.g. Grauby and Luykx, 1990), 
studies have been done to determine the leaching of calcium from bon es 
during cooki ng (broth). These studies have shown that very little calcium 
is transferred to broth during cooking. Since strontium is a calcium 
analogue, the conclusion that little Sr -90 is lost from bones or shells 
during cooking is reasonable.870  
                                                
861 Japan's scientific response to Korea's arguments in it s first written sub mission, (Exhibit JPN -148), 
pp. 17-21; Fukushima Duplicate Diet Survey , (Exhibit JPN -135); Explanation of how Duplicate Diet Survey: 
Raw Data (Fukushima prefecture) was compiled, (Exhibit JPN -144); Overview of Japan's food monitoring dat a 
submitted to the Panel, (Exhibit JPN -272), (item 3 -3). 
862 Japan's scientific response to Korea's argumen ts in its first written sub mission, (Exhibit JPN -148), 
pp. 17-21. 
863 Korea's first written submission, para. 171; response to Panel question No. 41; sec ond written 
submission, paras. 295 -297. 
864 Japan's response to Panel question No. 61.  
865 Japan's second wri tten submission, para. 285. Japan refers to T. C. Bestor; V. L. Bestor; "Cuisine 
and identity in contemporary Japan. Education about Asia" (2011); 16(3): 13 -18, available at:  
https://dash.harvard.edu/bitstream/handle/1/11639566/Bestor%20%26%20Bestor%20201 1%20 --
%20Cuisine%20and%20Identity_0.pdf?sequence=1 (last viewed 1 August 2016), ( Exhibit JPN -199); S. Fallon; 
M. G. Enig, "Inside Japan: Su rprising Facts About Japanese Foodways", available at 
http://www.westonaprice.org/health -topics/inside -japan -surprisi ng-facts-about -japanese -foodways/ (last 
viewed 1 August 2016), (Exhibit JPN -200); NHK World Radio, "Let's Cook Japanese" (18 May 2012), ava ilable 
at http://www3.nhk.or.jp/nhkworld/en/radio/cooking/20120518.html (last view ed 1 August 2016), 
(Exhibit  JPN-201) 
866 Korea's response to Panel question No. 41.  
867 Korea's response to Panel question No. 64; second written submission, paras. 295 -297. 
868 Experts' responses to Panel question No. 41 to the experts.  
869 For example, see Dr Skuterud's response to Panel question  No. 37 to the experts.  
870 Dr Thompson's response to Panel question No. 41 to the experts; See also Expert Meeting Transcript, 
para. 1.243.   WT/DS495/R  
 
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  7.231.   Althou gh it is true t hat those who eat shells or bones will be exposed to more 
radionuclides , than those who do not , that exposure is still limited to the total amount contained in 
the product. The experts noted that measurements for radionuclides in fish are do ne on the whole  
fish, by grinding it up into a sh. Therefore, any measurements necessarily include the amount of 
strontium in the bones and that these measurements in Japanese products were consistently 
below the Codex levels.871  
7.232.   Korea tells the Panel that w hen it conducts  assessments of contaminants in food it refers 
to a basket of goods made up of the 150 most consumed products in Korea. Korea 's 2015 
Guidelines for Food Safety Management explains that this is weigh ted 100 domestic products to 
50 imported pr oducts . In 2016 , this was revised to 80 domestic products and 70 imported 
products via the 2016 Guidelines for Food Safety Management.872 The products in these guidelines 
span over the following categories: agricultural products, fishery products, livestock products, and 
processed products. In the 2015 Guidelines for Food Safety Management, the products are as 
follows873: 
 Domestic: glutinous rice, barley, corn, potato, sweet potato, soybean, apple, tangerine, 
watermelon, grape, persimmon, oriental melon, onion, pepper, tomato , cucumber, green 
onion, soybean sprout, zucchini, cabbage, radish (leaves), carrot, perilla leaf, garlic; 
shiitake mushroom, lettuce, spinach, bracken fiddlehead, squid, anchovy, gizzard, 
mackerel, croacker, tuna, shrimp, eel, flounde r, oyster, pacific sa ury, laver, manila clam, 
long armed octopus, crab, filefish, mudfish, anglerfish, skate, rockfish, bonito, octopus, 
sea bream, mussel, scallop, abalone, mackerel, blow fish, Atka mackerel, seaweed, kelp, 
green laver, cod, hairtail, flo under, Japanese Spani sh mackerel, blue shark, bonito 
shark, beef, pork, chicken, duck meat, edible egg, raw milk, extract of edible meat (bone 
stock), bread, rice cake, ramen, noodle, flour, cracker, dumpling, sugar, syrup/starch 
syrup, tofu, soybean oil, sesame oil, cola, cid er, coffee, ham (processed pork), sausage, 
milk product, yogurt, ice cream , sherbet, processed fishery meat product, salted 
seafood, coffee cream; green tea, fruit and vegetable drink.  
  Imported: rice, corn, rice, orange, carrot, coffe e, soybean, pepper, b rocoli, garlic, 
barley, sesame; bracken fiddlehead, neungi mushroom, black mushroom, chaga 
mushroom, blueberry, long armed octopus, manila clam, hairtail, anglerfish, webfoot 
octopus, crab, pollack/frozen pollack, salmon, mackerel, cro aker, squid, mudfish;  pacific 
saury, cod, sea bream, pork, chicken, beef by -product, pork by -product, mutton, beef, 
glass noodle, cabbage kimchi, roasted coffee, fruit and vegetable drink, olive oil, 
processed fishery meat product, refined rice wine, table  salt, processed meat  product, 
cracker, flour, processed pollack product, beer, leached tea  
7.233.   It is impossible to do a direct comparison between the duplicate diet s used by Japan and 
the 150 most consumed products in Korea. However, Japan has provided the Pa nel with a 
comparison  of consumption rates of various groups of products in Korea and Japan.  The data in  
Table 19 below show that the composition of the Korean and Japanese diet in terms of the 
percentage of food categories consumed is broadly similar.  These similarities suppo rt a conclusion 
that it is reasonable to use the Japanese dietary surveys to estimate the potential dietary exposure  
from radionuclides  to  Korean consumers.  
  
                                                
871 Experts' responses to Panel question No. 42 to the experts.  
872 2015 Guidelines for Food Safety Management, (Exhibit KOR-281), pp. 5 -6, 9, 11 -12. The 100 
domestic products comprise of 29 agricultural, 38 fishery, 7 livestock products, and 26 processed food s. The 50 
imported products comprise 15 agricultural, 15 fishery, 6 livestock products, and 14 processed foods; Safet y 
Management of Radioactivity in Food", 2016 Guidelines for Food Safety Management, (Exhibit KOR -159), p. 6. 
According to the 2016 Guidelin es for Food Safety Management, (Exhibit KOR -159), the 80 domestic products 
include 23 agricultural, 31 fishery, 12 li vestock products, and 14 processed foods, the imported foods comprise 
of 20 agricultural, 20 fishery, 11 livestock products, and 19 process ed foods.  
873 The 2016 Guidelines contain a similar list of products.   WT/DS495/R  
 
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  Table 19: Comparison of food consumption statistics of Korea and Japan (2012)  
1 source: Korean Statistical Information Service; 
http://kosis.kr/eng/statisticsList/statisticsList_01List.jsp?vwcd=MT_ETITLE&parentId=D#SubCo nt. See Health 
– National Health & Nutrition Survey – Nutrition – Food intakes per capit a per day - choose 2012  
2 Source: Report of Survey on Health and Nutrition of National Public,  Health Service Bureau, Ministry of 
Health, Labor and Welfare; http://www.maff.go. jp/e/tokei/kikaku/nenji_e /89nenji/index.html . See XV Food 
Consumption - 3 National Nutrition - (2) Intake Per Person Per Day by Food Group (National, in 2012).  
3 Beverages include alcoholic beverage  
Source: Comparison of food consumption statistics of Kor ea and Japan (2012), (Exhi bit JPN -202).  
 
7.234.   The Panel recalls that the effective dose to human beings from the consumption of food 
containing radionuclides  is expressed as a formula that links, for each radionuclide, the effective 
dose exposure (expressed in mSv/year) to the activity level of that radionuclide in food (measured 
in Bq/kg), the amount of food consumed per year and the radionuclide -specific dose coefficient 
(expressed in Sv/ Bq).874 Japan used that relationship to calculate a caesium tolerance level  based 
on assumptions about food consumption, the share of food contaminated in Japan and average 
dose contributions from caesium and other relevant radionuclides.875 The experts all agreed that 
Japan adopted a conservative approach that , while designed  to ensure a dose exposure below 
1 mSv/year,  would actually overestimate dietary exposure.876 Professor  Michel explained that this 
conservatism is "revealed by comparing the exposures assumed in the Japanese deviation of the 
limits for radioactivity in food and t he measured intakes of Cs -137 as revealed by whole body 
                                                
874 See paras. 2.8, 2.25-2.26. 
875 See paras. 7.200 , 7.214  and 7.228 . 
876 For instance, in response to Panel question No. 77 to the experts, Dr Skuterud advised that "[t]he 
expected total dose using these [Japan's] assumptions would be maximum 0,0037 mSv/year." He further 
observed that even "if s omeone consumes 100 kg/year of products from Fukushima containing 100 Bq/kg their 
ingestion dose would be about 0.19 mSv/year from Cs". He considers that his analysis confirms "the 
conservatism and prudence in Japan's intervention level". Similarly, in res ponse to Panel question No. 81 to the 
experts, Ms Brown noted that "in deriving the 100 Bq/kg DIL, Japa n has made the conservative assumption 
that 50% of the whole diet is contaminated at the DIL for the whole year and on the contribution of SR -90 to 
the dose from marine fishery products. Peer reviewed estimates of the proportion of the dose from marine 
fishery products attributed to Sr are much lower (ranging from <1% to about 8%) than the 50% assumed in 
the derivation of the 100 Bq/kg DIL". See also Exper t Meeting Transcript, para. 1.7 (Professor Anspaugh).  Category in Korea n 
statistics  Korea1   Japan2   Category in Japanese statistics  
Cereals  300.8  21.0%  439.7  21.8
% Cereals  
 Potatoes & starches  32.2  2.2%  54.3  2.7%  Potatoes  
 Sugars  10.1  0.7%  6.5  0.3%  Sugar and preserves  
 Legumes  36.8  2.6%  57.9  2.9%  Pulses  
 Seeds  4.6  0.3%  2.1  0.1%  Nuts and seeds  
 Vegetables  293.0  20.4%  274.6  13.6
% Vegetables  
 Mushrooms  4.7  0.3%  16.1  0.8%  Mushrooms  
 Fruits  174.3  12.1%  107.0  5.3%  Fruits  
 Seaweeds  4.9  0.3%  9.9  0.5%  Seaweeds  
 Beverage  126.9  8.8%  603.9  29.9
% Beverages3 
 Alcoholic beverage  109.7  7.6%    0.0%    
 Seasonings  34.4  2.4%  90.6  4.5%  Seasonings and spices  
 Meats  110.1  7.7%  88.9  4.4%  Meat 
 Eggs 24.8  1.7%  33.9  1.7%  Hen eggs  
 Fishes & Shellfishes  49.2  3.4%  70.0  3.5%  Fishes and shellfishes  
 Milks 107.9  7.5% 125.8  6.2%  Dairy products  
 Oils 8.0  0.6%  10.4  0.5%  Fats and oils  
    0.0%  26.7  1.3%  confectionary  
 Others  3.0  0.2%    0.0%    
 Total 1,435.5    2,018       WT/DS495/R  
 
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  measurements." He also noted that "the assumed contributions of the other radionuclides are very 
conservative allowing for relativel y high contributions by Sr -90 and Pu isotopes which are not seen 
based on the food data."877 
7.235.   Instead of addressing the overall methodology878, the general concentration levels, or the 
average consumption doses879, Korea points to specific instances of individual  samples exceeding 
the 100 Bq/kg level for caesium. Korea also argue s that on 2 October 2013 a Pacific cod from the 
Ibaraki prefecture tested for 130 Bq/kg of caesium. The Panel is  not of the view that a few 
samples testing higher than 100 Bq/kg of caesium  is sufficient to rebut Japan 's analysis with 
respect to the alterna tive measure. The Panel notes that Japan 's alternative includes testing all 
consignments for 100 Bq/kg of caesium. The Panel 's understanding of Korea 's measures set forth 
in section 7.5 above  is that a pre -export certificate for caesium and iodine is required for all 
shipments from 16 prefectures, including the 8 subject to the ban , and that Japan does not 
challenge this. Moreover, if such products were shipped to Korea they would be subject to the 
testing of each consignment for caesium and iodine at -the-border. If they somehow made it on to 
the Korean market they would also be sub ject to the random point -of-sale testing.  
7.236.   More importantly, the Panel recall s that the 1 mSv/year level is based on annual average s. 
As the experts explained, consumption of one outlier fish – a so-called "Frankenfish" – with high 
levels of strontium that exceed its caesium levels would not affect an overall conclusion about 
exposu re of consumers. Dr Skuterud states that doses higher  than Japan 's estimated dose level 
would only be possible if customers deliberately consume the most contaminated products in very 
large quantities.880 Japan presented calculations to show that the chance of being able to find and 
consume even one such fish each week for a year would be less than one in a googol.881 According 
to Dr Thompson, given the low levels of contamination measured in marine fish and shellfish, 
consuming sufficient food in a year to ing est such levels of activity would not be possible, ev en if 
100% of food consumed was from Japan. She further notes "that it is also not possible to ingest 
enough contaminated marine products to get a dose close to 0.5 mSv/year from Cs -137".882 The 
Panel thus  finds that the evidence  support s a conclusion that testing for  food with less than 
100 Bq/kg of caesium would result in an effective dose below 1 mSv/year, and likely significantly 
lower, even if 100% of food consumed was of Japanese origin.  
7.237.   Furthermore, the impact of Japanese products on Korean dietary exp osure to radionuclides 
has to be assessed in light of how much Japanese food a Korean consumer would be eating. Japan  
                                                
877 Professor Michel's response to Panel question N o. 77.  
878 See e.g. Panel question Nos. 33, and 63, in which Korea was given the opportunity to provide its own 
methodology and calculations of its Bq/kg t hresholds.  
879 See footnote  836. Japan provided (i) calculations of average concentration levels of cesium and 
strontium, and (ii) Merz plots and calculations of average effective dose from the consumption of Japanese 
food, for a number of datasets: (i) strontium and  cesium test results for fisheries products caught near the 
Fukushima Dai -ichi site (Merz plot and calculations based on data in Exhibit JPN -253, (Exhibit JPN -256)); (ii) 
cesium test results for fisheries products und er Japan's monitoring program (Calculat ions based o n Exhibit 
JPN-254, (Exhibit JPN -257)); (iii) Japan's market basket survey (Merz plot and calculations based on "Market 
Basket Survey: Raw Data" (2011 -2015) , based on Exhibit JPN-133 revised  [CONFIDENTIAL ], (Exhibit JPN -
258)); (iv) Japan's nati onwide and Fukushima prefecture duplicate diet survey (Merz plot and calculations 
based on Japan's Ministry of Agriculture, Forestry and Fisheries, "Effective Dose from Duplicate Diet Survey: 
Raw Data (multiple prefec tures)"(2011 -2015),  (Exhibit JPN-134 ) and based on  Fukushima Duplicate Diet 
Survey , (Exhibit  JPN-135), (Exhibit JPN -259)); (v) a fiscal year 2014 study by MAFF, assessing contamination 
levels for various food products in prefectures close to the Fukushim a Dai-ichi site (Calculations based on "Full 
data underlying Examination and Analysis of Radioactive Substances in Agricultural, Forestry and Fishery 
Products for FY 2014", (Exhibit JPN -100), (Exhibit JPN -260)); (vi) nationwide cesium and strontium test re sults 
for agricultural products from Ja pan's Environmental Radioactivity Database (Merz plot and calculations based 
on ERD Agricultural Products Data (1963 -2016) (Exhibit JPN -131), (Exhibit JPN -261); Calculations based on 
unmatched agricultural products da ta (JPN -131.1), (Exhibit JPN -261.1); Me rz plot calculations based on 
matched milk data (1963 -2016) (Exhibit JPN -131.2), (Exhibit JPN -261.2); Calculations based on unmatched 
milk data (1963 -2016) (Exhibit JPN -131.2), (Exhibit JPN -261.3)); (vii) Japan's cesi um monitoring results for 
food products , as maintained by Japan's MHLW (Calculations based on "Data underlying Overview of food 
monitoring results" (April  2012-November 2016)" (Exhibit JPN -156), (Exhibit JPN -262)).  
880 Dr Skuterud's response to Panel questio n No. 77 to the experts.  
881 Googol = 10100.  See Japan's slides presented at the Expert Meeting, (Exhibit JPN -245).  
882 Dr Thompson's response to Panel question No. 77 to the experts. According to Dr Thompson, an 
annual ingestion of 38, 462 Bq of Cs -137 would  be needed to give a dose of 0.5 mSv /year and an ingestion of 
either 17, 857 Bq of Sr -90, or 2, 000 Bq of plutonium isotopes, or 2500 Bq of Am -241 for an additional dose of 
0.5 mSv/year from additional radionuclides.   WT/DS495/R  
 
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  has provided information to the Panel that the total share of Japanese food products in the Korean 
market prior to the accident was 0.37%.883 The Panel asked the experts whether, using Japan 's 
assumptions, if imports returned to pre -accident levels , it would result in Korean consumers ' 
exposure exceeding 1 mSv/year. The experts explained tha t, if the market share of Japanese 
products were to r eturn to 0.37% of the Korean food market, the data supports a conclusion that 
this would still result in a dietary exposure of less than 1 mSv/year.884 Specifically, Ms Brown 
stated that "[t]he increase to  2010 import levels should have no impact on the dose  limit in Korea" 
and that even if Japanese imports to Korea increase, such that all fishery products come from 
Japan, the dose from consumption of these products will still be very low.885  
7.7.6.4   Risk characteri zation  
7.238.   Outside deliberate exposure at high doses (acu te radiation exposure), it is extremely 
difficult to trace the onset of any particular adverse effects (e.g. cancers) to radiation exposure 
from one particular source – i.e., ingestion, medical treatment ,886 or other background exposure. 
It is also difficult  to conclude that certain cancers can be said to arise from such exposure. The 
ICRP recommended dose limit is the basis for food safety standards adopted by many national 
authorities. Dr Thompson explain s in that regard that:  
The dose limit for the public represents the ICRP 's judgement of the borderline of 
what would constitute unacceptability. The average annual fatal risk associated with 
the 1 mSv/year dose limit is about 3 in 100,000 per year (using I CRP risk factors), 
and the life time fatal cancer ris k at this exposure is 0.4% which represents an 
increase of about 2% of the baseline probability of dying of cancer (OECD 2011).887 
7.239.   Professor  Anspaugh explained that for an individual that risk is a chance of 0.00000057 
cancer -inducing detriment/year.888 The IC RP used the LNT model in calculating the 1 mSv/year 
dose limit. The LNT model assumes that there is no threshold below which adverse effects can be 
guaranteed not to occur. Prof essor  Michel explained that the LNT model extrapolates the risk of 
radiation-induced biological effects observed epidemiologically at higher doses down to the low 
dose region.889 Dr Thompson stated that the LNT model conservatively assumes that there is no 
safe level of exposure, that is, it assumes that even the smallest exposu re carr ies some probability 
of causing cancer.890 However, Dr Thompson, while acknowledging the role of the LNT model , also 
cautions that "uncertainty still exists at low (10 -100 mSv) and very low (<10 mSv) doses. 
Consequently, many scientific bodies (e.g. U NSCEAR,  ICRP) and professional organizations do not 
use the risks inferred from studies of populations exposed to moderate (100 mSv to 1 Sv) and 
high (> 1 Sv) doses to project absolute numbers of radiation -induced cancers following exposure 
to low and very  low do ses."891   
7.240.   As noted above, the upper boundary of Korea 's tolerance is 1 mSv/year. Thus Korea 
seems to adopt as its own the risk characterization carried out by the ICRP and utilized by the 
Codex in developing its maximum guideline levels.  In particula r, Kore a's adoption of the 
1 mSv/year dose limit and the Codex guideline levels for the 20 radionuclides (except caesium) 
                                                
883 Japan's first written submission, par a. 358; Japan's Ministry of Agricult ure, Forestry and Fisheries, 
"Share of Japanese food in Korea by category" ( Exhibit JPN -108). 
884 Experts' responses to Panel question No. 112 to the experts. See also Ms Brown's response to Panel 
question No. 33 to the ex perts; Dr Skuterud's response to Pan el question No. 77 to the experts.  
885 Ms Brown's response to Panel question No. 112 to the experts; experts' responses to Panel question 
No. 112 to the experts.  
886 Korea has presented some studies related to exposures from  medical treatment that might indica te a 
traceable link from treatment received (CT scans) and observable cancers. See M. P earce, J. Salotti, M. Litle, 
K. McHugh, C. Lee, K. Kim, N. Howe, C. Ronckers, P. Rajaraman, A. Craft, L. Parker, A. Berrington de 
Gonzalez, "Radiation exposure from CT s cans in childhood and subsequent risk of leukaemia and brain 
tumours: a retrospective cohort study", The Lancet, Volume 380, 499 -505 (June 7, 2012)., (Exhibit KOR -253). 
However, this data does not relate to exposure thro ugh food ingestion. Moreover, Profes sor Michel note that 
the epidemiological data on CT scans is relatively weak. Expert Meeting Transcript, paras. 1.64 -1.81. 
887 Expert Meeting Transcript, para. 2.188.  
888 Expert Meeting Transcript, para. 1.7. Professor Anspa ugh explained that "[e]ven if you mu ltiply that 
by 10 years, or 100 years, it is still a very small risk and basically I think people have to make their decision on 
whether or not that is an acceptable detriment to come from the consumption of food."  
889 Expert Meeting Transcript, para. 1.22. 
890 See e.g. Dr Thompson's response to Panel question No. 6 to the experts.  
891 Dr Thompson's response to Panel question No.1 to the experts.   WT/DS495/R  
 
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  when developing its own limits, reflects an understanding that below these levels food should be 
considered as safe for human consumpt ion.892 
7.7.6.5   The level of protection achieved by Japan 's proposed alternative measure  
7.241.   As noted above, the proposed alternative measure must achieve Korea 's ALOP. Japan 
argues that testing for 100 Bq/kg of caesium is sufficient to also determine that the levels o f the 
other radionuclides are within the tolerance limit set without requiring a specific additional test for 
that radionuclide. Japan 's alternative recognizes that Korea will continue to (i) require pre -export 
caesium and iodine testing for randomly selec ted sam ples from every consignment of food 
products from 13 prefectures and fishery products from 16 (the 8 previously banned, plus the 
8 currently allowed to ship), (ii) require origin certificates for all products, (iii) test every 
consignment coming fro m Japan  for caesium and iodine; and (iv) reject from the market any 
consignment where a sample tested for more than 100 Bq/kg of caesium.893 
7.242.   With regard to the adoption of the 2011 additional testing requirements, the Panel refers 
to its findings  in para. 7.84 above  that insufficient data were available to reach conclusions on the 
levels of radionuclides in Japanese products. At the time of adoption of the measure, the data were 
not sufficient to support the conclusion  that levels of strontium and plutonium would normally have 
been lower than levels of caesium in products and that testing for 100 Bq/kg of caesium would 
have ensure d that the l evels of the other radionuclides were below their Codex guideline levels. 
There fore, the Panel cannot conclude that at the time the  2011 additional testing requirements 
were adopted Japan 's alternative measure would have ensured human exposure below  the 
1 mSv/year dose limit. Likewise , the Panel  recall s its finding in para.  7.96 that the evidence  was 
sufficient to justify imposition of the product -specific bans in 2012. Indeed, Japan conducted its 
own risk assessment and determined that the products were not safe for distribution. In 2012, 
Japan itself did not have confidence with respect to the levels of radionuclides in Alaska pollock 
and Pacific cod from the five relevant prefectures. Therefore, the evidence does not support a 
conclusion that Japan 's alternative measure would achieve 1 mS v/year in 2012 for Alaska pollock 
and Pacific cod from the  five relevant prefectures.  
7.243.   However, on the basis of the preceding analysis, the Panel  recognize s that testing for 
100 Bq/kg of caesium should be sufficient to identify and prevent the entry onto ma rket of any 
goods that exceed the maximum levels establish ed. The Panel  also recognize s that since it is 
impossible to test every fish a measure such as Japan proposes can be considered as reasonable 
once there is sufficient confidence that the monitoring data shows that levels are consistently low 
such that test ing of samples from every consignments will be sufficient to detect any shipments 
containing products in excess of the limits or that the number of products in excess will be so low 
as to have no si gnificant impact on the exposure dose.894  In contrast to th e period  up to when the 
2012 measures were adopted , , at least since 2013 , the data is sufficient to confirm that caesium 
levels are consistently below 100 Bq/kg and that strontium and plutonium hav e not been detected 
in levels even nearing their respectiv e Codex guideline levels.895 Japan 's conclusion that if there is 
less than 100 Bq/kg of caesium in a given product it would not contain other radionuclides, 
particularly strontium and plutonium, in ex cess of the Codex guideline levels is supported by the 
understanding of the volumes of the initial releases, how they were dispersed, and how they 
affected plants and animals in the food chain. Japan relied upon a variety of studies and academic 
literature  to develop its model. The experts confirmed that these  were qualified and respected 
scientific sources.896 Moreover, the data of actual measurements of levels of radionuclides in foods 
confirm that caesium is consistently present in greater quantities than strontium and that 
                                                
892 CODEX STAN 193 -1995, (Exhibit JPN -32), p. 51.  
893 See sections 2.7.1 and 2.7.2 above. Japan's response to Panel question No. 145.  
894 For Japan's description of its monitoring strategy see para. 2.70. 
895 Dr Thompson's response to Panel question No. 56 to the experts.  
896 The Panel asked the experts to review the studies Japan relied upon in Exhibits JPN -11 and JPN -148 
to see if they were from qualified and respected sources. Moreover, the experts in answeri ng the Panel's 
questions examined Japan's underlying monitoring data that it used as the basis for its conclusions. Korea 
notes that the analysis of Drs Buesseler and Brenner is not peer reviewed. While peer review is an important 
indicator of the quality of scientific work, the absence of peer review does not ipso facto disqualify a scientific 
analysis from being reliable. The Panel notes that it would be highly unlikely for a risk assessment conducted 
by a governme nt authority to be subjected to a formal peer review process and yet such assessments are 
relied upon every day as the basis for sound decisions for sanitary and phytosanitary protection.   WT/DS495/R  
 
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  plutonium is extremely low and unabl e to be distinguished from pre -existing background levels in 
the Pacific from weapons testing.  
7.244.   Combining this information with the expected dietary exposure to Korean consumers from 
Japanese products,  the evidence supports a conclusion that utilizing Japa n's alternative measure 
would result in a dose below 1 mSv/year even if 100% of food consumed was of Japanese origin. 
Given that Japanese food products represent a small share of the Korean market, the ir expected 
contribution  to Korean consumers ' dose would be significantly lower .897  
7.245.   Therefore, the Panel finds that Japan 's alternative measure ensures that the total dose is 
below 1 mSv/year and likely significantly lower .  
7.7.7   Comparison of the level of prote ction achieved by Japan 's alternative measure and 
Korea 's ALOP  
7.246.   The Panel has found that Japan 's alternative measure would achieve an exposure dose for 
Korean consumers below 1 mSv/year  and likely significantly lower .  
7.247.   As noted above, the Panel has conclude d that Korea 's ALOP is not quantified at 1 mSv per 
year, but is rather a qualitative ALOP that reflects Korea 's adherence to the ALARA principle and its 
desire not to increase radiation exposure beyond what is in the ordinary environment. However, 
the qual itative ALOP is reflected and inherent in the measures Korea applies to food products – 
which seek to limit overall consumption to below  1 mSv/year.  
7.248.   Korea informed the Panel that it maintains specific levels for each radionuclide and thus 
Japan 's measure would not achieve its ALOP because it does not specifically test for the other 
radionuclides. The Panel notes, that while Korea does maintain specific maximum levels for each 
radionuclide it does not generally apply border measures to imports  other than Ja panese products  
that specifically test for radionuclides other than caesium  and iodine . There is a possibility that 
once goods have already been placed on the market Korea will do random testing for caesium and 
iodine , which could result in a dditional test ing for strontium and plutonium.  
7.249.   The Panel notes that Korea 's tolerance level for caesium is 100 Bq/kg . It is not "trace 
amounts" or 0.5 Bq/kg. Therefore, testing for 100 Bq/kg of caesium is an appropriate measure for 
ensuring that Korea 's tolerance level for that radionuclide is not exceeded. The Panel also notes its 
conclusion above, that Japan has demonstrated that so long as products from Japan contain less 
than 100 Bq/kg of caesium they would also contain less than Korea 's specific maximu m levels for 
strontium, plutonium, and the other Codex radionuclides.    
7.250.   As noted above, the Panel has  found that there is insufficient data to demonstrate that 
testing for caesium alone would have been sufficient to achieve a  dose below  1 mSv/year in 2011  
when the firs t additional testing requirements were adopted. Similarly, the Panel  found that the 
evidence also did not support a conclusion as regards the adoption of the 2012 product -specific 
import ban s that testing only for caesium would achieve a 1 mS v/year level o f protection with 
respect to Alaska pollock and Pacific cod from the  five relevant prefectures. Therefore, the Panel 
finds that Japan has failed to establish that its proposed alternative measure would have achieved 
Korea 's ALOP at the time t hose two measu res were adopted.  
7.251.   The evidence supports a conclusion that since 2013 Japan 's alternative measure would 
achieve a maximum level of exposure  below 1 mSv/year and likely  significantly lower with respect 
to the products subject to the additional  testing requi rements (both those adopted in 2011 and in 
2013) as well as for all the fishery products  subject to the product -specific bans and the blanket 
import ban, with one exception. The Panel  notes that throughout 2013 Japan maintained 
distribution restrictions on  Pacific cod from Fukushima and Ibaraki, because Japan considered it to 
be unsafe for distribution. As a result, the Panel  finds that Japan has established that the 
suggested alternative me asure achieves Korea 's ALOP with regard to the adoption of the 2013  
                                                
897 See experts' responses to Panel question Nos. 77 and 88 to the exp erts. See also Professor 
Anspaugh's openi ng statement at the Expert Meeting, Expert Meeting Transcript, para. 1.7. Japan presents a 
"worst case scenario" where the maximum level of exposure that could be reached using its alternative 
measure would be 0.94 mSv/year. Japan's first written submissio n, para. 341.   WT/DS495/R  
 
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  additional testing requirements and import bans on the 28 fishery products , with the exception of 
Pacific cod from Fukushima and Ibaraki.  
7.252.   In view of even smaller concentration levels measu red in all Japanese food products in 
2015, the Panel  finds for simi lar reasons that Japan has also established that its alternative 
measure would result in an exposure level below 1 mSv/year  or significantly lower  and achieve 
Korea 's ALOP with regard to th e maintenance of all the measures.898 
7.7.8   Conclusion  
7.253.   In sum, Japan has pr oposed another measure that is technically available and 
economically feasible and is significantly less trade restrictive than the measures Korea currently 
applies. With respect to whether  Japan 's alternative measure achieves Korea 's level of protection, 
the Panel  finds that it would not have met Korea 's level of protection at the time the 2011 
additional testing requirements and the product -specific bans were adopted. Similarly, the Panel  
finds that it would not have achieved Korea 's ALOP for Pacific cod from Fukushima and Ibaraki at 
the time the 2013 blanket import ban was adopted. With respect to the 2013 additional testing 
requirements and the other fishery products  and prefectures subje ct to the blanket import ban, the 
Panel  finds that Japan 's alternat ive measure would have achieved Korea 's ALOP at the time the 
measures were adopted. The Panel  finds that for all the measures, Japan 's alternative measure 
would have achieved Korea 's ALOP a t the time of the establishment of the Panel and continue to 
do so to this date .  
7.254.   Therefore, the Panel  finds that Korea 's 2011 additional testing requirements and 2012 
product -specific import bans were not more trade -restrictive than required when adopted.  
However, at the time of the establishment of the Panel, they were maintained  inconsistent ly with 
Article 5.6 of the SPS Agreement because they are more trade -restrictive than required.  
7.255.   The Panel finds that the 2013 additional testing requirements were adopted and 
maintained inconsistent ly with Article 5.6 of the SPS Agre ement because they were and are more 
trade -restrictive than required.  
7.256.   The Panel finds that the blanket import ban (with the exception of the bans on Pacific cod 
origin ating from Fukushima and Ibaraki) was adopted in a manner inconsistent with Article 5.6 of 
the SPS Agreement because it was more trade -restrictive than required. The Panel finds that the 
maintenance of the blanket import ban, with respect to all 28 fishery  products  from all 8 
prefectures , is inconsistent with Article 5.6 of the SPS Agreement because it is more trade -
restrictive than required.  
7.8  Non-discrimination  
7.257.   Article 2.3 is listed among the SPS Agreement 's "Basic Rights and Obligations" and 
provides as f ollows:  
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 
constitut e a disguised restriction on international trade.  
7.258.   Japan claims that Korea 's import bans and additional testing requirements are inconsistent 
with Article 2.3 of the SPS  Agreement, because they arbitrarily or unjustifiably discriminate against 
Japanese prod ucts and they constitute a disguised restriction on international trade. Japan 
maintains in that regard that the conditions of food products imported from Japan and of other 
origins are similar, because they pose similar SPS risks regulated by Korea 's meas ures.899 Japan 
does not argue that the relevant conditions of products from Japan and other origins are identical. 
Korea  contests that the additional testing requirements  and the import bans are inconsistent with 
Article 2.3. According to Korea, the relevant  condition s are not similar between Japan and other 
                                                
898 The post -establishment data confirm that this declining trend in concentration levels continues.  
899 Japan's first written submission, paras. 291 and 419.   WT/DS495/R  
 
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  Members and any distinction drawn by the measures is rationally connected  to the differences in 
the conditions preva iling in the territories of the Members concerned .900 
7.259.   Previous panels have found that addr essing a claim under Article 2.3, first sentence, 
involves a cumulative analysis of three elements of the provision, namely whether the measures 
discriminate, whether d iscrimination is arbitrary or unjustifiable and whether identical or similar 
conditions prevail.901 The Appellate Body has endorsed this cumulative approach, finding that "the 
three elements identified in the first sentence of Article 2.3 inform each other, such that the 
analysis of each element cannot be undertaken in strict isolation from the  analysis of the other two 
elements."902 However, the Appellate Body observed that while Article 2.3 does not mandate any 
particular order of analysis, "logically, identi fying the relevant conditions, and assessing whether 
they are identical or similar, will  often provide a good starting point".903 It also noted that "the 
analytical approach adopted by a panel may vary as a function of, inter alia , the measure at issue, 
the nature of the alleged discrimination, and the particular circumstances of a case."904  
7.260.   As regards the second sentence of Article 2.3, previous panels followed the Appellate 
Body's findings made in the context of Article XX of the GATT 1994 that " 'disguised r estriction ', 
whatever else it covers, may properly be read as embracing restrictions amo unting to arbitrary or 
unjustifiable discrimination."905 Thus, prior panels considered their findings of arbitrary or 
unjustifiable discrimination as a factor indicating that the challenged measures also constituted a 
disguised restriction on international t rade.906 The Panel will, therefore, start its assessment by 
addressing each of the three elements of Japan 's claim under Article 2.3, first sentence, with 
regard to adopt ion and maintenance of the challenged measures. The Panel will then turn to 
Japan 's claim that Korea 's measures constitute a disguised restriction on international trade.  
7.8.1   Whether identical or similar conditions prevail  
7.8.1.1   Interpretation  
7.261.   As regards the meaning  of the term "similar" in Article 2.3, previous panels understood it 
to mean "of the sam e substance or structure throughout – homogenous; having a resemblance or 
likeness; of the same nature or kind".907 The parties do not question this interpretation, but t hey 
offer divergent views on the type of conditions that can be  subject of a comparison  under 
Article  2.3. 
7.262.   According to Japan, the relevant conditions should be determined with reference to the 
overall regulatory framework from which the alleged discriminatory treatment emerges.908 In that 
regard, Japan maintains that the challenged Korean meas ures regulate SPS risks arising in 
products.909 In addition, Japan points out that the SPS Agreement, which applies to Korean 
measures, forms part of Annex 1A o f the WTO Agreement, regulating trade in goods.910 On that 
basis, Japan concludes that in order to d etermine whether conditions are identical or similar, the 
Panel has to analyse the situation of a "basket of products from different origins that present the 
same or similar SPS risks".911 
7.263.   Japan finds context for its interpretation of Article 2.3 in Article 5.5 of the SPS Agreement. 
According to Japan, both provisions address arbitrary or unjustifiable discrimination and it is well -
                                                
900 Korea's second written submission, paras. 236-253. 
901 Panel Reports, Australia – Salmo n (Article 21.5 – Canada) , para. 7.111; India – Agricultural 
Products , para. 7.389; US – Animals , para. 7.571; and Russia – Pigs (EU) , para. 7.1297.  
902 Appellate Body Report, India – Agricultural Products , para. 5.261.  
903 Appellate Body Report, India – Agricultural Products , para. 5.261.  
904 Appellate Body Report, India – Agricultural Products , para. 5.261.  
905 Panel Reports, India – Agricultural Products , para. 7.476; US – Animals , para. 7.575; and Russia – 
Pigs (EU) , para. 7.1389. See also Appellate Body Report , US – Gasoline , p. 25.  
906 Panel Reports, India – Agricultural Products , para. 7.477; US – Animals , para. 7.575; Russia – Pigs 
(EU), para. 7.1386.  
907 Panel Reports, US – Animals , para. 7.572 and Russia – Pigs (EU) , para. 7.1302.  
908 Japan's first written submi ssion, paras. 228 and 407; second written submission, para. 83.  
909 Japan's second written submission, para. 84.  
910 Japan's second written submission, para. 84.  
911 Japan's second written submission, para. 86.   WT/DS495/R  
 
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  established that a violation of  Article 5.5 entails a violation of Article 2.3.912 Japan refers the Panel 
to the Guidelines to Furt her the Practical Implementation of Article 5.5 ,913 which in the case of 
"food -borne risks" call for a comparison between "situations involving the same type of  substance 
or pathogen".914 Japan also cites to previous panels that have undertaken comparisons bet ween 
regulatory treatment of products (or baskets of products) in their analysis of measures under 
Article 5.5.915 
7.264.   Korea maintains that Japan 's emphasis on prod uct comparison is misguided.916 According 
to Korea, the appropriate basis of comparison is the condi tions prevailing in the territory of Japan 
and other countries, rather than whether products imported from Japan and other countries pose 
similar risks.917 Korea argues that the plain language of Article 2.3 calls for a comparison of 
conditions in the territory of a particular Member with those in another Member.918 Korea refers in 
that regard to past panels ' summary of the discrimination test under Article 2.3, wh ich used the 
word "territories".919 According to Korea, the "comparable product" test advocated by J apan is  thus 
difficult to reconcile with the plain language of the provision.920 Korea argues that the context of 
Article 5.2, which lists among factors to be c onsidered in a risk assessment process "relevant 
ecological and environmental conditions", support  its view that the conditions referred to in Article 
2.3 are territorial.921  
7.265.   As regards the relevance of Article 5.5 for interpretation of Article 2.3, Korea states that 
these are distinct provisions containing different requirements. Korea argues that whe reas 
Article  2.3 expressly refers to the conditions prevailing in the territories of the Members 
concerned, Article 5.5 refers to the avoidance of arbit rary or unjustifiable distinctions in the levels 
of protection that a Member considers to  be appropriate in different situations, if such distinctions 
result in discrimination or a disguised restriction on international trade. In its interpretation of 
Article 2.3, Korea argues that the Panel should give effect to the difference s in the language  
between the tw o provisions.922 In Korea 's view, Japan 's reliance on the Guidelines to Article 5.5 is 
misplaced, as, according to Korea, the Guidelines do not  provide i nterpretation of any provision of 
the SPS Agreement and, more specifically, do not address Article 2.3.923 Moreover, Korea submits 
that a product -focused legal test under Article 2.3 would impermissibly enable exporting Members 
to impose an obligation of equ ivalence, thereby circumventing Article 4.1 of the SPS Agreement.924 
Korea concludes that the continued rel ease of radionuclides and possibility of future leaks into the 
environment, as well as non -enforcement risks, are all directly relevant to a determinat ion of 
whether conditions prevailing in Japan are "identical or similar" to those in other Members under 
Article 2.3.925  
7.266.   Previous panels have understood the term "conditions" to mean "a way of living or 
existing"; "the state of something"; "the physical sta te of something"; and "the physical or mental 
state of a person or thing".926 Past panels have found that t he chapeau  of Article XX of the 
GATT  1994 provides useful context for the interpretation of the terms of Article 2.3 , because both 
provisions refer to arbitrary or unjustifiable discrimination  where identical or similar conditions 
prevail .927 When interpreti ng the chapeau  of Article XX of the GATT 1994, the Appellate Body has 
found that "only 'conditions ' that are relevant for the purpose of estab lishing arbitrary or 
                                                
912 Japan's second written submission, para. 88 (citi ng Appellate Body Report,  Australia – Salmon , 
para. 252; and Panel Reports, Australia – Salmon , para. 252; and US – Poultry (China), para. 7.318).  
913 Committee on Sanitary and Phytosanitary Measures, Guidelin es to Further the Practical 
Implementation of Art icle 5.5 , 18 July 2000 (G/SPS/15).  
914 Japan's second written submission, para. 89.  
915 Japan's response to Panel question No. 49 (citing Panel Report s, US – Poultry (China), para. 7.236; 
Australia – Salmon (Art icle 21.5 – Canada) , para. 7.89; and EC – Hormone s, paras. 8.186 -8.187).  
916 Korea's first written submission, para. 106.  
917 Korea's first written submission, paras. 107 -110. 
918 Korea's second written submission, para. 143; response to Panel question No. 133. 
919 Korea's second written submission, paras. 148 -49 (quoting the Appellate Body Report, India – 
Agricultural Products , para. 5.256 and Panel Report, India – Agricultural Products , para. 7.460).  
920 Korea's responses to Panel questions No. 133 and 134.  
921 Korea's second written submission, para. 144.  
922 Korea' s second written submission, paras. 164 -165. 
923 Korea's second written submission, paras. 166 -167.   
924 Korea's first written submission, para. 110; response to Panel question No. 37.  
925 Korea's first writ ten submission, paras. 137 -141. 
926 Panel Reports, US – Animals , para. 7.572; Russia – Pigs (EU) , para. 7.1302.  
927 Panel Reports, India – Agricultural Products , para. 7.400; and US – Animals , para. 7.570.   WT/DS495/R  
 
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  unjustifiable discrimination in the light of the specific character of the measure at issue a nd the 
circumstances of a particular case" should be considered.928 The Appellate Body has found the 
regulatory objectives pursued by the measur e and expressed in the provisions relied on as 
justification for the measure to be relevant to the determination o f the conditions to be 
compared.929 Prior panels have adopted a similar reasoning with re spect to Article 2.3 of the 
SPS Agreement, finding that  the relevant conditions could be determined by the risk being 
addressed as described in the objective of the chal lenged measure.930 We agree that the 
regulatory objective  of a measure should inform the Panel 's determination of the relevant 
conditions.  
7.267.   In describing the legal test under Article 2.3, previous panels further explained that to 
make a prima facie  case of a  violation, a complainant must demonstrate that "identical or similar 
conditions prevail in the territories of the Members compared .931 Korea fo cuses on the inclusion of 
the word "territories" in the text of the provision  and relies on statements by previous  panels  as 
the bas es for its interpretation that the conditions to be compared are limited to ecological and 
environmental conditions in Membe rs, as opposed to conditions manifested in products.932 We 
disagree. The language of Article 2.3 prohibits arbitrary  or unjustifiable discrimination "between 
Members where identical or similar conditions prevail, including  between their own territory and 
that of other Members." The word "including" is used in this sentence "to indicate that the 
specified person or thing  is part of the whole group or category being considered".933 As such, it 
qualifies the subsequent part of the sentence. By employing this langu age, Article 2.3 identifies 
"territory" as an example of conditions that could be compared, but it does not preclu de that other 
conditions could be compared as well.934 In a similar manner, as pointed out by Korea, the use of 
the term "including" signifies t hat national treatment is one of the obligations embedded in first 
sentence of Article 2.3.935 
7.268.   The Panel must read t he text of Article 2.3 in its context and in light of its object and 
purpose. Article 2.3 is one of the SPS Agreement 's basic rights and oblig ations relating to non -
discrimination, which applies to all types of SPS measures. An interpretation of this provi sion 
which would remove whole  categories of SPS measures from its scope would be contrary to the 
principles of effective treaty interpretation . The Panel asked Korea to explain the implications of its 
interpretation for the established relationship between  Articles 2.3 and 5.5 as well as for measures 
that address risks no t related to the environment or agricultural conditions, such as the presen ce 
of additives.936 Instead of addressing the Panel 's question,  Korea informed the Panel that there 
was no claim und er Article 5.5 in this proceeding and that the determination of conditions will 
always be case specific and that this dispute relates to conta minants rather than additives.937 After 
the second meeting Korea sought to expand on its explanation of the implicat ions of its 
interpretation, when it stated that Article 2.3 could apply to measures addressing risks from 
additives that are linked to climatic conditions or regional practices .938 The Panel acknowledges 
that determining the conditions in a particular disput e will be case specific. However, Korea is 
                                                
928 Appellate Body Report, EC – Seal Products , para. 5.299.  
929 Appellate Body Report, EC – Seal Products , para.  5.300 -5.301.  
930 Panel Reports, India – Agricultural Products , para. 7.469; and US – Animals , para. 7.580.  
931 Panel Reports, Australia – Salmon (Article 21.5 – Canada) , para. 7.111. See also Pane l Reports, 
India – Agricultural Products , para. 7.389; US – Animals, para. 7.571; and Russia – Pigs (EU) , para. 7.1311.  
932 Korea's second written submission, para. 144.  
933 Oxford English Dictionary, "including", 
http:// www.oed.com/view/Entry/46973633?rskey=EdtCeP&result=3&isAdvanced=false#eid , last accessed on  
19 August 2017.  
934 In support of its argument, during the second meeting of the Panel, Korea also ex plained that the 
Spanish version of the Article 2.3 text does n ot use the word "including", and thus "including" is not intended 
to expand the scope of what is compared, which remains the conditions that prevail in Members' territories. 
The Panel does not find this argument persuasive. The English and French versions of the text of the 
SPS Agreement expressly convey that the list is illustrative by the use of "including" and "y compris". Pursuant 
to Article 33(4) of the VCLT we must interpret the Spanish version in a manner that would enable all three 
versions to be co nsistent. The only way to do so is to conclude that the Spanish reference to conditions 
prevailing in the territories is also illustrative. In that vein, we note that the Spanish vers ion does not contain 
any text that would contradict such a conclusion.  
935 During the second meeting of the Panel Korea argued that the word "including" is used to incorporate 
both the national treatment and MFN obligations into the SPS Agreement.  
936 Panel qu estion Nos. 49 and 50.  
937 Korea's responses to Panel question Nos. 49 and 50. 
938 Korea's response to Panel question No. 134. (emphasis added)   WT/DS495/R  
 
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  asking  the Panel to adopt an interpretation that could have a far -reaching effect. In the Panel 's 
view, such a distinction in the application of Article 2.3 is inappropriate, because it would lead to 
limiting the scope of Article 2.3 to SPS measures addressing r isks linked to the environment. The 
Panel finds such an interpretation contrary to the object and purpose of this provision and, as 
discussed below, finds no support for such distinctions in the scope of app lication of Article 2.3 in 
the context of that provision or the SPS Agreement.  
7.269.   It is important to recall that the Appellate Body has confirmed that Article 2.3 "takes up 
obligations similar to those arising under Article I:1 and Article III:4 of the GATT 1 994 and 
incorporates part of the chapeau  to Artic le XX of the GATT 1994."939 The Panel also note s that 
GATT 1994 provisions on quantitative restrictions, such as Article XI, apply to import bans on 
goods and claims under this provision have been made against  SPS measures.940 The Panel recall s 
in this respect  that the SPS Agreement constitutes further elaboration of rules established under 
the GATT 1994 and in particular Article XX (b) thereof.941 The textual and conceptual similarities 
between Article 2.3 of the SPS Agreement and various provisions of the GATT 1994 inform us that 
the focus of the obligations in the SPS Agreement is the same as those in the GATT 1994, namely 
on trade in goods.  
7.270.   Korea is correct that Article 2.3 refers to conditions in the territory  of Members. As noted 
above, this reference is no t exclusive of other relevant conditions. Moreover, this reference has to 
be read in  the context of the SPS agreement itself. SPS measures regulate products and the risks 
that they can transfer from one terr itory to another. It is true that ecological or e nvironmental 
conditions in an exporting Member can be relevant depending on the circumstances of the case 
and, in particular, the  type of  risk addressed by the challenged measures. Disputes over  measures 
adopted to prevent the spread of pests or diseases a re likely to focus on whether a particular pest 
or disease is present in the territory of the exporting or importing member. This was the situation 
in Russia – Pigs (EU) (African swine fever) , US – Animals (foot-and-mouth disease), India-
Agricultural Produ cts (low pathogenicity avian influenza), Australia – Apples ( fire blight, European  
canker and leafcurling midge ), Japan -Apples ( fire blight), and Australia – Salmon ( various disease 
agents).  In such cases, t erritorial aspects are likely to be more prominen t compared to disputes 
over measures targeting "risks arising from additives, contaminants, toxins or disease -causing 
organisms in foods, beverages or feedstuffs", covered by Annex A(1)(b). However, even in those 
cases the discussions of territorial condit ions were still ultimately linked to a determination on 
whether to accept the importation of a particular product and under what conditions. Thus, even 
when examining territorial conditions – such as the pre sence of pests or environmental 
contamination – it is done in light of the ultimate purpose of addressing risks of products in 
international trade.942 
7.271.   In light of the above, the Panel finds Korea 's reliance on the panel and Appellate Body 
reports in India – Agricultural Products  unavailing.943 Although both the panel and the Appellate 
Body accepted that the relevant condition was the distinction adopted in the challenged measures 
– the presence or not of notifiable avian influenza in the territory of the export ing member944 – 
even in that case, the issue was wh ether imported poultry products could be a means of 
transmitting avian influenza to domestic poultry. Contrary to what Korea suggests, neither the 
panel nor the Appellate Body ruled in that case that relevan t conditions may only be determined 
based on ecol ogical or environmental conditions prevailing in a Member 's territory. The Appellate 
Body repeated the panel 's finding that a presence of a relevant disease in one country but not 
another may be an indicatio n that identical or similar conditions do not exist.945 The Panel 
understand s this statement to express the possibility that presence of a disease in a country could 
                                                
939 Appellate Body Report, Australia – Salmon , para. 251.  
940 See e.g. Australia – Salmon , US – Poultry (China) , India – Agricultural Products , US – Animals , and 
Russia – Pigs (EU) . 
941 SPS Agree ment, Preamble, eighth recital.  
942 The panel in US – Animals  held that "[t]he ultimate effect of any procedure to designate a particular 
region with a "disease status is to determine w hat SPS measures should be applied to the products  originating 
from that region." Panel Report,  US – Animals , para. 7.69.  
943 Korea's second written submission, para. 149 (quoting Appellate Body Report, India – Agricultural 
Products , para. 5.256.)  
944 Panel Re port, India – Agricultural Products , para. 7.463.  
945 Paragraphs 5.250, 5.2 56 and 5 .261 of the Appellate Body report merely restate the panel's findings 
instead of reflecting Appellate Body's own findings. Appellate Body Report, India – Agricultural Products , 
para. 5.256 (citing Panel Report, India – Agricultural Products , para. 7.460). (emphasis added)   WT/DS495/R  
 
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  be considered by a panel as a relevant factor in the assessment whether identical or similar  
conditions prevail. However, the Panel sees nothing in that particular statement, or in the panel 's 
or the Appellate Body 's reports more generally, that would limit the relevant conditions under 
Article 2.3 in all cases to comparing the ecological and env ironmental conditions in the territories 
of different Members.  
7.272.   The Panel  finds further contextual support for this interpretation in the relationship 
between Articles 2.3 and 5.5. Article 5.5 refers to a need to avoid arbitrary or unjustifiable 
distinction s in the application of the ALOP to different situations, if such distinctions were to result 
in discrimination or a disguised restriction on international trade. It i s well established that 
Article  5.5 is a more specific delineation of the obligations set  forth in Article 2.3 in the sense that 
it ma rks out and elaborates a particular route leading to the same  destination set out in 
Article  2.3.946 Although it is true that one can establish an independent violation of Article 2.3 
without claiming a violation of Article 5.5, it is also accepted that a violation of Article 5.5 results in 
a consequential finding of inconsistency with Article 2.3.947 Previous panels have ruled in the 
context of Article 5.5 that the relevant point of comparison as to whether two situ ations would 
require the application of the same ALOP is whether they are addressing the same product or the 
same risk.948 Although, the Panel recognize s that Article 2.3 can ha ve a broader scope than 
Article  5.5, in that certain types of conditions to be co mpared under Article 2.3 will not constitute 
different situations under Article 5.5, the opposite is not the case. A situation that is comparable 
within the meaning of Article 5.5 must fall within the scope of Article 2.3. Therefore, a condition of 
a produ ct that serves as the basis for a comparable situation under Article 5.5 also serves as a 
basis for a similar condition under Article 2.3. For example, the panel in US – Poultry (China)  
found measures taken for the purpose of protecting consumers from the presence of disease -
causing organisms, such as salmonella, e -coli, listeria and campylobacter in poultry products to be 
inconsistent with Article 2.3 as a consequence of a violation of Article 5.5.949 This would not have 
been possible under Korea 's approach,  which, by focusing solely on territorial conditions, would 
have excluded from the scope of Article 2.3 measures such as those in US – Poultry (China).  In 
sum, the relationship between Articles 5.5 and 2.3 and the consistent interpretation of Article 5.5 
leads us to believe that the relevant conditions cannot be limited to those in the territory of the 
exporting or importing Member.  
7.273.   The Panel agree s with Korea that the term conditions should be read in the context of 
Article 5.2, which requires Members to t ake into account "relevant ecological and environmental 
conditions" in their risk assessment processes. However, Korea omits the other factors, which 
Article 5.2 instructs risk assessors to take into account. The entire provision reads:  
In the assessment of risks, Members shall take into account available scientific 
evidence; relevant processes and production methods; relevant inspection, sampling 
and testing methods; prevalence of specific diseases or pests; existence of pest - or 
disease -free areas; relev ant ecological and environmental conditions; and quarantine 
or other treatment.  
7.274.   Using the entirety of Article 5.2 as context, the references to processes and production 
methods, inspection, sampling and testing methods as well as quarantine or other treatm ent that 
relate to conditions relevant for products tend s to support a conclusion that the conditions referred 
to in Article 2.3 are to be broadly construed and include those found in products and not just the 
territory of an exporting or importing Member.  The Panel also find s relevant context in the 
definition in Annex A(4) for the type of risk assessment to be conducted for a measure adopted 
pursuant to Annex A(1)(b).950 Annex A(4) states that a risk assessment is "the evaluation of the 
potential for advers e effects on human or animal health arising from the presence of  additives, 
contaminants, toxins or disease -causing organisms in food, beverages or feedstuffs ." Thus, it is 
appropriate for a risk assessment analysis with regard to an Annex A(1)(b) measure to focus on 
the presence of a health hazard in certain products and not on an analysis of territories.  
                                                
946 Appellate Body Reports, Australia – Salmon , para. 252; and EC – Hormones , para. 212.  
947 Appellate Body Report, Australia – Salmon , para. 252.  
948 Panel Report, US – Poultry (China) , paras. 7.227 -7.228.  
949 Panel Report, US – Poultry ( China) , paras. 7.318 -7.319.  
950 The Panel notes that Annex A(4) contains another definition of risk assessment which does refer to 
assessing the risk of the entry, establis hment or spread of a pest or disease within the territory of the 
importing Member. The  one cited above is that typically associated with risk assessments for measures 
adopted pursuant to the purpose in Annex A(1)(b) such as Korea's measures at issue in thi s dispute.   WT/DS495/R  
 
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  7.275.   Finally, contrary to Korea 's contention, the Panel finds that determining the relevant 
conditions on the basis of the potential of product contamination  would not lead to circumvention 
of Article 4.1 of the SPS Agreement. Article 4.1 requires in essence an importing Member to accept 
as equivalent the SPS measures applied internally by another Member to the same product, if the 
exporting Member objectively  demonstrates that such measures achieve the importing Member 's 
ALOP. As pointed out by Japan, the legal issues addressed by Article 4.1 and Article 2.3 are 
different.951 Unlike Article 4.1, which deals with the question what SPS measures Members should 
apply, Article 2.3 is focused on the manner  in which measures are applied.952 A Member is not 
precluded from adopting stricter SPS measures than other Members, even if conditions between 
them are identical or similar, provided that these measures are applied in a non -discriminatory 
manner and are consistent with other relevant obli gations in the SPS Agreement. In the current 
dispute, Japan is not seeking to have Korea recognize its internal measures as equivalent but 
rather that Korea apply its own measures in a non-discriminatory manner. If anything, Article 4.1 
provides further co ntextual support for the Panel 's interpretation that product -related risks are 
pertinent for the determination of the relevant conditions. This is because a request for 
equivalence purs uant to Article 4.1 is only possible if "the same product" is subject t o the 
importing and exporting Members ' SPS measures.  
7.276.   In light of the foregoing, the Panel conclude s that its determination of the relevant 
conditions should be informed by the regulato ry objective of  the challenged measures  and the 
justification  relied up on by the Member  in light of the character of the measures and specific 
circumstances of the case. In that regard, the Panel  sees nothing in the language of Article 2.3, 
first sentence,  read in its context and in the light of its object and purpose that wo uld preclude it 
from considering the risk present in products in international trade as the relevant condition.  
7.8.1.2   What are the relevant conditions  
7.277.   With regard to the determination of the relevant conditions in this dispute, Japan initially 
frames the relevan t conditions in light of the operation of the measures as the potential for 
contamination of food with caesium and, for food containing caesium up to Korea 's tolerance level 
of 100 Bq/k g, the potential for containing certain other radionuclides.953 Further i nto the 
proceedings, Japan phrases the question more generally as "the re levant conditions under 
Article  2.3 are whether food products from Japan and food products of other origins cont ain 
cesium and the additional radionuclides."954 Finally, referring to th e evidence produced in support 
of its claims under Article 2.3, Japan concludes that:  
[F]ood from Japan and from non -Japanese sources present similar conditions for 
purposes of a discri mination comparison under Article 2.3.  Specifically, products from 
Japan and from other origins have similar absolute contamination levels; and, they 
have similar contamination levels that fall well within Korea 's chosen tolerance 
limits.955 
7.278.   The Panel thus understands Japan to be arguing that the relevant similar condition in the 
case at hand is the potential for contamination of food products with caesium and the additional 
Codex radionuclides within Korea 's tolerance levels (e.g, 100 Bq/kg of caesium, 10 0 Bq/kg of 
strontium, 10 Bq/kg of plutonium  and an overall dose limit of 1 mSv/year for all Codex 
radionuclides).  
7.279.   Korea reiterates its argument that a product -oriented test would be an inappropriate basis 
for assessing whether the relevant conditions are sim ilar and that the Panel should instead focus 
on the specific conditions  in the environment in Japan.956 Korea lists a number of concerns and 
uncertainties about the initial releases at the time of the accident, subsequent releases and 
potential future releas es, which, according to Korea, are relevant to determination of the rel evant 
                                                
951 Japan's second written submission, para. 106.  
952 See with regard to the chapeau  of Article XX of the GATT 1994, Appellate Body Report, EC – Seal 
Products , para. 5.302. In our view, the Appellate Body's finding applies eq ually to Article 2.3 of the 
SPS Agreement, which closely follows the language of Article XX of the GATT 1994.  
953 Japan's first written submission, para. 238 (import bans) and para. 410 (additional testing 
requirements).  
954 Japan's second written submission, para. 109. (footnotes om itted)  
955 Japan's second written submission, para. 125.  
956 Korea's second written submis sion, paras. 148 -151.  WT/DS495/R  
 
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  conditions . Korea also argues that the marine environment off the coast of Fukushima is 
distinctive.957  
7.280.   The Panel recall s that the starting point of an analysis of the relevant con ditions is the 
objective of the measure and the risk being addressed.  In that regard,  Korea state s that both the 
import bans and the additional testing requirements pursue the regulatory objective in Annex 
A(1)(b) to protect human health from potential adv erse effects arising from the presence of 
radionuclides in food and beverages.958 Likewise, the documents announcing Korea 's measures 
focus on protection against radioactive contamination in food imp orted from Japan. For instance, a 
press release announcing temporary import bans on food from certain Japanese regions links 
introduction of further bans to detection of radionuclides in excess of the tolerance limits:  
In the future, items that are found t o be additionally contaminated by exceeding the 
standard le vel or items that newly suspended for distribution by Japan are expected to 
be subject to temporary import ban immediately.959 
7.281.   In a similar vein, a KFDA press release states that further measures wou ld be considered 
"in case concerns are raised regarding sev ere radioactive contamination in Japan -originated 
foods."960 As for Korea 's testing requirements, KFDA announced that the 13 prefectures subject to 
the measure, 5 of which are also subject of product -specific import bans, were determined based 
on detection o f radionuclides in food products.961 As regards the blanket import ban and the 
extension of the additional testing requirements to all food products in 2013, the Panel  notes that 
these measures were taken following the disclosure of leakages of contaminated water from the 
FDNPP and the "growing public concern", as well as "uncertainties pertaining to how the situation 
in Japan will evolve."962 The extended measures remained focused on the safety of food  products 
ensuring, among other things, that the "same leve l of radioactivity safety [be] applied to both local 
foods and Japanese foods."963  
7.282.   As noted earlier in this report964, Korea also adopted additional measures which Japan does 
not challenge – such as t he testing of randomly selected samples from every consignm ent for 
caesium  and iodine , the requirement of origin certificates and pre -export caesium and iodine 
testing certificates , as well as internal measures for additional testing. Moreover, the Panel notes 
that Korea also stepped up enforcement of origin label ling in markets.965 
7.283.   In view of the close link between Korea 's measures, their complementarity and their single 
regulatory objective , the Panel views Korea 's import bans and the additional testing req uirements 
as part of an overall regime pursuing a single ob jective of protecting Korea 's population from 
potential adverse effects from consumption of food contaminated with radionuclides . Therefore, 
the relevant condition s to be compared between Members f or the purpose of determining whether 
conditions are simila r within the meaning of Article 2.3 is whether products from Japan and the 
rest of the world have a similar potential to be contaminated with the 20 Codex radionuclides, in 
particular  with caesium, iodine, strontium and plutonium, and whether the levels of  contamination 
would be below Korea 's tolerance levels.  
7.8.1.3    Whether conditions are similar in food from Japan and of other origins  
7.284.   Japan argues that food from all over the world contains so me amounts of caesium and 
other Codex radionuclides due to past rele ases of radioactive material to the atmosphere.966 Japan 
                                                
957 Korea's first written submission, paras. 142 -150. 
958 Korea's response to Panel question No. 29.  
959 Korea Prime Minister's Office, Press Release, "Te mporary Import Ban on food from regions 
contaminated by radioactivity in Japan" (25 Ma rch 2011), (Exhibit KOR -36), p. 1.  
960 KFDA 24 March 2011 Press Release, (Exhibit JPN -69.b), p. 2. (emphasis omitted)  
961 The document reads that "[t]he 13 ken are where the Japanese government has detected radioactive 
materials in spinach, etc." KFDA 14 April  2011 Press Release, (Exhibit JPN -55.b (revised)), (Exhibit KOR -72 
(revised)) p. 2. (emphasis omitted)  
962 PMO Blanket Import Ban and Additional Testing Requirements Press Release, (Exhibit JPN -3.b), p. 1.  
963 PMO Blanket Import Ban and Additional Testing Requ irements Press Release, (Exhibit JPN -3.b), p. 1.  
964 See sections 2.7.1 and 2.7.2 above.  
965 The Panel's findings with regard to the operation of Korea's testing requirem ents can be found in 
section 7.5 above.  
966 Japan's first written submission, para. 225; second written submission, para. 123.   WT/DS495/R  
 
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  maintains that, as a result, Japanese and non -Japanese food poses similar potential of containing 
caesium. In support of this content ion, Japan argues that "since April 2012, for all food categories 
combined, the percentage of food samples exceeding the 100 Bq/kg level in Japan has been very 
low".967 Japan further argues that in the fi scal year 2015, more than 99% of results of all tests 
conducted across all Japanese product groups showed caesium concent ration levels below 
25 Bq/kg.968 Japan compares these test results with the ones conducted by Korea and Japan on 
non-Japanese food to show that products of different origins can contain caesi um, including in 
excess of Korea 's 100 Bq/kg tolerance level.969 Japan  concludes that because Japanese and non -
Japanese products can contain caesium, and because  caesium, when released, is accompanied by 
other Codex radionuclides, both Japanese and non -Japan ese products can also contain other 
Codex radionuclides.970 
7.285.   Korea disp utes that  Japan has demonstrated that  the relevant conditions are similar in 
food from Japan and from other origins. Korea argue s that there is currently insufficient relevant 
scientific e vidence concerning radionuclide contamination in Japan stemming from  the FDNPP.971  
With respect to the specific food products, Korea alleges insufficiencies of Japan 's food monitoring 
program me and a limited sampling of commercially important fishery specie s.972 In particular , 
Korea reiterates  its argument relating to the  insufficient number of strontium and plutonium test 
results presented by Japan in its various data sets.973 Finally,  Korea maintains   that Japan stated  
that the insufficiency of evidence is a relevant factor and that "Article 2.3 may allow a Member to 
justify d iscrimination because of insufficiencies in the scientific evidence."974  
7.286.   Korea further maintains that the elevated levels of caesium detected in  the Japanese 
environment and in  certain Japanese products, demonstrate a higher potential of containing 
caesium and the additional radionuclides.975 Korea refers to several instances of plants and 
animals tested between 2012 and 2015, in which 10 0 Bq/kg or m ore of caesium was detected. 
In particular, Korea cites to one Pacific cod that tested for 130 Bq/kg of caesium  on 
2 October  2013.976 Korea also cites to tests in several fish species that are not the subject of 
Japan 's claims, namely black porgy , sea bass, stone flounder, and masou salmon.977 Korea further 
refers to two incidents in May 2016 in Tochigi where a food sta nd had accepted mislabelled wild 
edible plants that had actually been sourced from a restricted area that exceeded the reference 
level (100 Bq/kg) by up to 2100 becquerels and bamboo shoots served for lunch at a local 
elementary school were found to contai n 234 Bq/kg of caesium. The mislabelling was discovered 
through a purchase survey by MHLW.978 Korea adds that Japan itself maintains r estrictions on 
distribution of certain species due to the contamination potential.979 
7.287.   Moreover, Korea argues that Japan fails to demonstrate that food products from all origins 
contain caesium.980 According to Korea, results of tests conducted by Korea and Jap an on 
third-country products show levels of caesium exceeding the 100 Bq/kg level for products known 
                                                
967 Japan's second written submission, para. 114.  
968 Japan's second written submission, p ara. 113.  
969 Japan's second written submis sion, paras. 119 -122; response to Panel question No. 136.  
970 Japan's second written submission, paras. 123 -124. 
971 Korea's second written submission, paras. 172 -176. 
972 Korea's second written submission, paras. 90 -92; Exhibit KOR -273. 
973 See e.g. Korea's secon d written submission, paras. 90 -101. 
974 Korea's second written submission, paras. 174 -176. 
975 Korea's second written submission, paras. 40 -50. 
976 Korea's second written submission, para. 47.  
977 Korea's opening statement  at the first meeting of the Panel, para. 73 (citing FAJ Caesium Monitoring 
Data of fisheries products, (Exhibit JPN -72)). Korea refers to test results for black porgy from Fukushima with 
Cs-510 Bq/kg (May 14, 2014) and sea bass fr om Miyagi with Cs -190 Bq/ kg (August 13, 2014).  Korea also 
refers to samples of the black porgy taken in 2012 contained 3,300 Bq/kg of caesium, samples of stone 
flounder taken from 2014 contained 240 Bq/kg of caesium, and samples of masou salmon in late 201 5 
contained 180 Bq/kg of caesium. Korea refers to these species to argue that Japan is "cherry -picking" the data 
to present a more positive picture than real life. However, we note that Japan is not challenging the bans on 
these species. As regards the fis hery species subject to J apan's claims against Korea's import bans, Korea 
returns to its argument that Japan has engaged in "cherry picking" with lower measured radionuclide levels. 
For more detail on Korea's argumentation in that respect, the Panel refers  to paras. 7.210  through 7.212  
above.  
978 Korea's opening statement at the first meeting of the Panel, para. 73; second written submission, 
paras. 47 -49 and 104 -105; response to Panel question No. 42.  
979 Korea's second writte n submission, para. 204.  
980 Korea's comments on Japan's response to Panel question No. 136.   WT/DS495/R  
 
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  to accumulate radioacti ve isotopes more easily, such as blueberries and mushrooms.981 Korea adds 
that the said test results, at least those conducted by Kore an authorities, focused on products from 
specific origins, such as Ukraine and its neighbouring countries and China, which h ave been 
affected by past releases of radioactive material.982 Accordingly, Korea argues that the evidence 
put forward by Japan does n ot support Japan 's contention that food products of all origins contain 
caesium.983 
7.288.   Korea further argues that because the impo rt bans and the additional testing  requirements  
were adopted as provisional measures within the meaning of Article 5.7 of the SPS Ag reement, 
Japan has to show that scientific information was sufficient to reach the conclusion that the 
conditions were similar or identical.984 Korea alleges that, in particular with regard to strontium 
and plutonium, there is insufficient scientific informa tion to allow valid conclusions about 
concentration levels of these radionuclides in Japanese food.985 In a similar vein, Kore a contends 
that the number and type of food samples tested is insufficient to support conclusions about the 
relevant conditions in J apanese food and the sample -design omits instances of highly 
contaminated items.986 Korea adds that leakages and the risk of f urther releases of contaminated 
water from the FDNPP to the marine environment renders the relevant conditions dissimilar.987 
Korea al so alleges that Japan 's argumentation is flawed in that it disregards contamination of the 
environment, in particular the se abed, and the amount of hazardous radioactive material 
remaining at the FDNPP site.988  
7.289.   In the Panel 's view, assessing whether the potential for contamination with caesium and 
the additional radionuclides is similar in food products from Japan and of other o rigins requires the 
Panel to take a holistic approach that would consider all the relevant factors af fecting such a risk. 
The Panel will thus assess the totality of the evidence  provided to the Panel , without any single 
element being dispositive for our co nclusion. In its analysis under Article 5.6, the Panel examined 
the level of the release of the radio nuclides from the FDNPP and the levels of radionuclides in food 
products from Japan. An analysis of the same factors with respect to food from other origin s is 
relevant to whether the relevant conditions posed by Japanese and non -Japanese products are 
similar. 
7.290.   Starting with the source of radioactive contamination, the record evidence demonstrates 
that caesium, iodine, strontium and plutonium were the main ra dionuclides released from the 
FDNPP following the reactor meltdowns and are the radionuclides definit ely addressed by Korea 's 
measures.989 As noted earlier, any iodine released to the environment quickly decayed due to its 
very short physical half -life (eight days). With respect to strontium and plutonium, the amounts 
released into the environment  were orde rs of magnitude lower than the caesium releases and 
absolute levels were small.990 The other radionuclides were released in even smaller quantities. 
The Pane l also note s that americium, ruthenium, cerium , and iridium are gamma -ray emitters and 
are thus  detec ted using the same spectrometers as those used in caesium testing.991 In other 
words, test ing for caesium  would reveal  any detectable levels of these other r adionuclides in the 
results. Therefore, in light of the nature and volumes of the radionuclides relea sed from the 
FDNPP, the Panel  consider s it sufficient to focus its analysis on the potential contamination by 
caesium, strontium , and plutonium  isotopes . 
7.291.   Prior to the FDNPP accident, there were major releases of man -made radionuclides, which 
contaminated t he global environment. As indicated in Table 20 below, the fallout from nuclear 
                                                
981 Korea's comments on Japan's response to Panel question No. 136.  
982 Korea's comments on Japan's response to Panel question No. 136.  
983 Korea's comments on Japan's res ponse to Panel question No. 136.  
984 Korea's opening statement at the first meeting of the Panel, para. 53.  
985 Korea's second written submission, paras. 93 -101 and 216 -220. 
986 Korea's second written submission, paras. 203 -215. 
987 Korea's second written submissi on, para. 221; response to Panel question No. 40.  
988 Korea's second written submission, paras. 172 -202. 
989 See section 2.5.1.1  above . 
990 See para. 2.49 above, and  UNSCEAR 2013 Report Annex A, (Exhibit JPN -210), p. 41; Ms Brown's 
response to Panel question No. 28 to the experts; Profe ssor Michel's response to Panel question No. 91 to the 
experts.  
991 Expert Meeting Transcript, para. 3.15.   WT/DS495/R  
 
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  weapon s testing is responsible for the most radioactive material distribute d globally.992 The 
accident in the Chernobyl nuclear power plant in 1986 was another major source of gl obal 
radioactive contamination, although it had  a particularly strong impact on Europe.993 Releases from 
other nuclear facilities had more localized effects.994 The radioactive material, mainly caesium, 
released to the atmosphere from the FDNPP also contribute d to global contamination levels, 
although the fallout has affected the East and North of Japan the most.995 Caesium and, to a much 
lesser extent, strontium and plutonium discharged to the ocean from the FDNPP were largely 
dispersed by sea currents and added to existing concentration levels in the Northern Pacific. Given 
their properties, it is expected that som e amounts of these radionuclides were bound to pa rticles, 
sunk and settled in sediments off the Fukushima coast.996 This would also be true for areas close 
to the other primary sources of contamination.997 In sum, although radionuclides can be more 
concentrate d close to the source of contamination, the radio active material originating from all of 
these events has been dispersed across the world depending on the atmospheric transport, 
precipitation, sea currents, as well as physical and chemical characteristics of specific isotopes.998 
Table 20: Estimated  total  releases of radioactive caesium, strontium and plutonium from 
the major pre -2011 events and the FDNPP accident.  
Isotope  Nuclear weapons 
testing (PBq)  Chernobyl accident 
(PBq)  Irish Sea releases 
(PBq)  FDNPP a ccident (PBq)  
Cs-137 950 85 41.2 7-26 
Sr-90 620 10 6.2 0.04-1 
Pu-239, -240 11 0.031  0.6 0.00001 -0.000024  
Source: Analysis of caesium and additional radionuclides in food products from Japan and the rest of the world , 
(Exhibit JPN -11) pp. 17 -22 and 36. For the FDNPP data see section 2.5.1 above.  
 
7.292.   The Panel recognises the unprecedented nature of the FDNPP accident, as the largest 
release of radionuclides from a nuclear accident into the marine environment.999 However, the 
Panel cannot ignore the fact that prior  to the FDNPP accident major releases of radionuclides took 
place in marine areas, resulting in their contamination.1000Examples include discharges of 
radioactive waste into the Irish Sea and North Atlantic, as well as nuclear weapons tests conducted 
in the P acific, including underwater.1001 
7.293.   Due to their physical half -life, some of the caesium and strontium released during pre -
2011 events have already decayed. However, as confirmed by the experts, both the historical 
releases and t he FDNPP accident continue to ha ve global effects.1002 Likewise, the  predominant 
source of plutonium in the Pacific is still  long-lived isotopes of plutonium released during the 
nuclear weapons testing.1003 The Panel finds on that basis that the caesium, stronti um and 
plutonium that were relea sed to the environment in significant quantities prior to the FDNPP 
accident still have the potential to be present in food from across the world.  
7.294.   Man-made radionuclides released to the environment can contaminate agricultur al and 
livestock products throug h direct deposition from the atmosphere. Plants and fungi can absorb 
                                                
992 Experts' responses to Panel question Nos. 19 and 22 to the experts. According to the 2000 UNSCEAR  
Report, "[n]uclear weapons tests were conducted at  various locations on and above the earth's surface …. " 
Depending on the location of the explosion (altitu de and latitude ) the radioactive debris entered the local, 
regional or global environment." 2000 UNSCEAR Report, Sources and Effects of I onizing Radia tion, 
(Exhibit  JPN-11.1(111)), p. 160.  
993 Experts' responses to Panel question Nos. 19 and 22 to the expert s. See also Professor Michel's 
response to Panel question No. 42 to the experts.  
994 Experts' responses to Panel question Nos. 19 and 22 to the experts.  
995 See section 2.5.1.3  above. While iodine was also released to the atmosphere in significant quantities, 
it quickly decayed due to its very short p hysical half -life. 
996 Oceanus 1 May 2013, (Exhibit KOR -7), p. 4; Fukushima Daiichi –Derived Radionuclides in the Ocean: 
Transport, Fate, and Impacts (2017), (Exhibit JPN -264), pp. 10 -15. 
997 Professor Michel's response to Panel question No. 42 to the experts.  
998 Experts' responses to Panel question Nos. 2, 19 and 22 to the experts.  
999 Korea's second written submission, para. 22.  
1000 Professor Michel's response to Panel question N o. 71 to the experts; Japan's slides presented at the 
Expert Meeting, (Exhibit JPN -245), p. 13.  
1001 Professor Michel's response to Panel question No. 71 to the experts; Japan's slides presented at the 
Expert Meeting, (Exhibit JPN -245), p. 13.  
1002 Experts' resp onse to Panel question No. 19 to the experts.  
1003 See para. 2.56 above.   WT/DS495/R  
 
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  radionuclides from the soil via root uptake.1004 As regards livestock, if not directly exposed to 
radiation, it can ingest and retain radionuclides through co nsumption of plants, fungi or fo dder, 
potentially leading to contamination of meat and milk.1005 Fish and other marine species can 
absorb radionuclides directly from water, from dietary sources, such as plankton, forage fish and, 
to a lesser extent, sediments  in case of demersal species.1006  
7.295.   The absorption rate of radioactive material by plants, animals and fungi varies depending 
on the physical, biological and chemical processes involved, as well as their geographical niche.1007 
Various pathways of radionuclide up take have been studied and they allow estimating transfer 
factors between plants, animals, and fungi up the food chain and ultimately to food products for 
humans.1008 Figure 7 below demonstrates how radionuclides may be cycled through the marine 
food web, bea ring in mind that the transfer f actor from one species to the other is not necessarily 
un-diluted and depends on a number of variables.  
Figure 7: Transport of hazardous substances and transformation products through the 
food web in the marine environment.  
 
Source: I. Dahllof, J. H. And ersen (eds.), Hazardous and Radioactive Substances in Danish MarineWaters, 
(National Environmental Research Institute, 200), (Exhibit KOR -264), p. 13.  
 
7.296.   Figure 8 below indicates the worldwide average  ingestion  doses from isotopes of caesium -
137 and strontiu m-90 released during nuclear weapons testing.  
Figure 8: Worldwide average doses from radionuclides produced in atmospheric testing 
of nuclear weapons through in gestion exposure.  
 
Source: 2000 UNSCEAR Report, (Exhibit JPN -11.(111)).  
                                                
1004 Experts' responses to Panel question No. 2 to the experts.  
1005 Experts' responses to Panel question No. 2 to the experts.  
1006 Experts' response s to Panel question Nos. 2, 18 and 39 to the experts.  
1007 Experts' responses to Panel question No. 2 to the experts.  
1008 Experts' responses to Panel question No. 2 to the experts.  
 WT/DS495/R  
 
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7.297.   Based on the data in Figure 8  and knowledge of the half -lives of caesium and strontium, 
the Panel can reasonably conclude that radioactive isotopes of caesium and strontium from nucl ear 
weapons testin g continue to this day to constitute a potential for contamination of food pro ducts 
across the world. The Panel  notes that this graph does not take into account the additional 
releases from the Chernobyl accident or other release events f rom nuclear facilities. These events 
added to the global contamination levels and thus increase the potential for contamination of food 
above what is depicted in the graph.  
7.298.   In light of all of the foregoing, the Panel concludes that past releases of radionuclides to 
the environment continue to affect food products and mean that food from anywhere in t he world 
has the potential to be contaminated with radionuclides. The Panel now turn s to the levels of 
radionuclides in food. In that regard, Japan has provided the Panel with data with respect to the 
levels of radionuclides in food products in Japan and f rom other origins.  
7.299.   With respect to the levels of caesium in food products in  Japan, Japan provides the Panel 
with data from three different government agencies (NRA, MHLW and MAFF) with different 
sampling criteria. Japan primarily relies on the MHLW 's dat aset for 2012 -2016 (however, for 
fisheries the data goes back to 2011).1009 In its arguments Japan points the Panel to different 
subsets of the data, either by time -period or product.1010  
7.300.   The Panel recall s its finding above that Korea 's measures all serve the s ame purpose and 
form part of an overall regulatory regime dealing with radioa ctive contamination in food.1011 At the 
same time, the Panel is  also aware that the measures were imposed progressively over time and 
that each measure has a different product scope.  The 2011 additional testing requirements apply 
to agricultural products, pro cessed foods and food additives; the product specific import bans 
adopted in 2012 apply to Alaska pollock from Fukushima and Pacific cod from Aomori, Fukushima, 
Ibaraki, Iwate and  Miyagi; the 2013 additional testing requirements extend the 2011 measures to  
livestock and fishery products; while Japan challenges the 2013 blanket import ban on fishery 
products from 8 prefectures with respect to Alaska pollock, Pacific cod, and 26 othe r fishery 
products .1012 The Panel also recall s that Japan is challenging the ado ption as well as the 
maintenance of the measures. Thus, the Panel must first determine whether the conditions were 
similar in 2011, 2012, and 2013 with respect to the groups of pr oducts covered by each measure. 
Secondly, the Panel will determine whether th e conditions were similar when the Panel was 
established on 28 September 2015 and whether they continued to be so.  
7.301.   Korea adopted the 2011 additional testing requirements for agric ultural products, 
processed foods and food additives in the months immediatel y following the FDNPP accident. Japan 
admits that during that period caesium levels in food from the most affected areas of Japan 
"increased considerably."1013 Japan does not refer i n its arguments to data on the levels of 
radionuclides found in these product categories in 2011 that would support Japan 's argument that 
conditions were similar at that point in time. Indeed, the food monitoring data Japan provided for 
non-fishery product s only begins in April 2012.1014 Although the ERD data does cover the period 
before and after the accident, it only provides an overview of test results for agricultural products 
                                                
1009 As discussed in section 7.7.2, Japan must establish that a violation existed on the date of 
establishment of the Panel. In that sense, Japan must provide data that demonstrates that the similarity of 
condition s existed at the time of establishment of the Panel. The Panel only refers to po st-establishment data 
to confirm the continuation of the conditions.  
1010 For example, Japan argues that in every year since April 2012 less than 1% of all categories of  
tested Ja panese food products were found to contain 100 Bq/kg or more of caesium. Japan f urther argues that 
no sample tested after 3 October 2013 of the 28 fishery products subject to Korea's import bans that Japan is 
challenging has exceeded that level of caesium.  Japan then refers again to all products covered by the ERD 
database, stating th at no result "in recent years" has shown caesium levels in excess of the 100 Bq/kg level. 
Japan's second written submission, paras. 113 -115. 
1011 See para. 7.283  above.  
1012 Abalone, Albacore, Alfonsino, Anchovy, Bige ye tuna, Blue shark, Bluefin tuna, Chestnut octopus, 
Chub mackerel, Chum salmon, Common octopus, Common sea squir t, Giant Pacific octopus, Japanese 
amberjack, Japanese flying squid, Japanese jack mackerel, Japanese sardine, Pacific oyster, Pacific saury, 
Salmon shark, Scallop, Skipjack tuna, Southern mackerel, Striped marlin, Swordfish, Yellowfin tuna.  
1013 Japan's seco nd written submission, para. 110.  
1014 MAFF overview of food monitoring results (April 2012 – March 2016), (Exhibit JPN -155).   WT/DS495/R  
 
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  and, except for milk, not for processed foods or additive s.1015 In the absence of sufficient data 
directly addressing the conditions of the Japanese products subject to the challenged measure, the 
Panel  finds that Japan has failed to meet its burden of proof with respect to the existence of 
similar conditions in Ja panese and non -Japanese  products at the time of adoption of the 2011 
additional testing requirements.  
7.302.   With respect to the adoption of the product -specific  import  bans on Pacific cod and Alaska 
pollock from five Japanese prefectures in 2012, the Panel notes that they followed Ja pan's 
introduction of its own internal restrictions on distribution of these two fishery products  from the 
same prefectures.1016 The Panel understand s that Japan imposed these internal restrictions, 
because caesium levels detected in sa mples were in excess of  the tolerance level of 100 Bq/kg.1017 
These restrictions are an indication that Japan itself concluded that there was a high potential for 
contamination in these fishery products  in these areas in 2012. Moreover, in its argumentation 
with respect to these ba ns, Japan does not focus on the time of adoption, but rather argues that 
since October 2013 the levels in samples of these products have not exceeded 100 Bq/kg of 
caesium.1018 Therefore, the Panel finds that Japan has not met the burden  of proof to establish its 
factual assertion that the potential for radionuclide contamination in Pacific cod and Alaska pollock 
from the relevant prefectures in 2012 were below Korea 's tolerance levels.  
7.303.   With regard to the adoption by Korea of the blanket  import ban in 2013, th e Panel has 
reviewed the sampling data provided from MAFF and MHLW for the 28 fishery products  for each of 
the affected prefectures. According to the data, the caesium content measured in all fishery 
products  covered by Japan 's claim , except Pacific cod, w as at that time consistently below the 
tolerance level of 100 Bq/kg.1019 As regards Pacific cod specifically, 4 samples from Fukushima and 
2 from Ibaraki tested in the three quarters preceding adoption of the blanket import ban exceeded  
Korea 's tolerance leve l.1020 At the same time, Japan maintained its own restrictions on Pacific cod 
from those two prefectures.1021 Therefore, the Panel finds that for 27 of the fishery products  from 
all 8 prefectures and Pacific cod from Aomori, Chiba, Gunma, Iwate, Miyagi and Tochi gi the data 
supports a conclusion that the potential caesium contamination in these products was below the 
100 Bq/kg tolerance level. However, Japan has not met its burden of proof to establish the same 
factual assertion with regard to Pacific cod from Fuk ushima and Ibaraki in 2013.  
7.304.   With respect to the extension of the additional testing requirements in September 2013, 
the Panel notes that the measure applies to essentially all food – fishery, livestock, and agricultural 
products; pro cessed food; and food a dditives. During that time period, Japan continued to 
maintain distribution restrictions on a number of food products, such as cereals, grains and fishery 
products, especially from the Fukushima prefecture.1022 However, unlike the produ ct specific and 
blanket  import bans, Japan is not seeking the removal of the measures only with respect to certain 
products. Instead, Japan is seeking to invalidate Korea 's additional testing requirements 
completely with respect to all the food products th at they cover. If Korea 's import bans were 
removed, then the additional testing requirements would apply to the relevant product s. 
Therefore, the Panel will not exclude any test results from specific fish species or food products 
from our analysis of the similarity of conditions  with regard to the additional testing requirements.  
7.305.   As the 2013 additional  testing requirements address all products from anywhere in Japan 
in terms of their contribution towards an average annual exposure level, our analysis w ill examine 
all products fro m anywhere in Japan from the same perspective. Having examined the relevant 
                                                
1015 ERD Agricultural Pr oducts Data (agricultural products) , (Exhibit JPN -131.1); ERD Agricultural 
Products Data (milk) , (Exhibit JPN -131.2); ERD Agricultural Products Data (other food) , (Exhibit JPN -131.3).  
1016 See para. 2.104  above.  
1017 Japan's 22 June 2012 Ban, Alaska  Pollock and Pacific Cod - Fukushima,  (Exhibit JPN -119.b), p. 1; 
Japan's 27 August 2012 Ban, Pacific Cod - Aomori,  (Exhibit JPN -121.b), p. 1; Japan's 2 May 2012 Ban, Pacific 
Cod - Iwate and Miyagi,  (Exhibit JPN -117.b), p. 1;  Japan's 9 November 2012 Ban, Pa cific Cod - Ibaraki,  
(Exhibit  JPN-123.b), p. 1. See also MHLW Concepts of Inspection Planning and Items and Areas to which 
Restrictions of Distribution and/or Consumption of foods applies, (Exhibit JPN -42.b), p.8 -9. 
1018 Japan' s first written submission, para . 252.  
1019 MHLW Caesium Monitoring Data of Food Products (April 2012 – July 2016), (Exhibit JPN -157).  
1020 MHLW Caesium Monitoring Data of Food Products (April 2012 – July 2016), (Exhibit JPN -157).  
1021 The last distribution restricti ons on Pacific cod were lifted i n January 20 13 in the Miyagi prefecture, 
in November 2014 in the Ibaraki prefecture and in February 2015 in the Fu kushima prefecture. 
See section  2.7.6 above.  
1022 Japan MHLW Interna l Distribution Restrictions on Food,  (Exhibit JPN -48), pp. 1 -10.  WT/DS495/R  
 
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  data, the Panel notes that at the time the measure was adopted,  in general, less than 1% of   
samples were found to exceed the caesium tolerance level o f 100 Bq/kg for all product categories 
from all Japanese prefectures.1023 Even if the Panel  were to disaggregate the data based on the 
different classes of food the measures apply to, the Panel  notes that in fiscal year 2013, less than 
1% exceeded the caesium  level of 100 Bq/kg with reg ard to most products, the main exception 
being game meat.1024  
7.306.   Therefore, with respect to the adoption of the 2013 additional testing requirements, the 
Panel finds that Japan has established its factual assertion that , in general , the levels of caesium 
contam ination in all Japanese food products were below 100 Bq/kg.  
7.307.   With respect to the maintenance of the import bans, the  MHLW and MAFF  data shows that 
since 3 October 2013, none of the tests of the 28 fishery products  covered by Jap an's claim from 
any Japanese  prefecture detected caesium in excess of the 100 Bq/kg level.1025 The Panel notes 
that a single sample of Pacific cod was measured to contain 100 Bq/kg in March 2014, but the vast 
majority of samples of the 28 fishery products  tested since October 2013 conta ined between 0 and 
25 Bq/kg of caesium.1026 The Panel recognise s that on certain occasions, the radionuclide content 
measured in samples of Japanese fish was higher than Korea 's tolerance levels.1027 However, 
several of these fishery products  (black porgy, sea b ass, stone flounder, and masou salmon) are 
not subject to Japan 's claim and will remain banned regardless of the outcome of this dispute.1028 
7.308.   For the maintenance of the additional testing requirements, both 2011 and 2013, the Panel  
recall s that, in general , levels of caesium in products have been continuously declining. In fiscal 
year 2012 the percentage was 0.86%, in fiscal year 2013 0.32%, and in fiscal year 2014 
0.18%.1029 The reviewed data support Japan 's contention that for all but two food categories, the 
proportion of samples exceeding the 100 Bq/kg tolerance level was less than 1%, including with 
regard to the Fukushima prefecture.1030 The Panel also finds the data to su pport Japan 's contention 
that in the two quarters immediately preceding establishment of t he Panel, the majority of 
Japanese food products contained between 0 and 25 Bq/kg of caesium.1031 The notable exceptions 
were wild plants, wild edible fungi , and game me at, which are foods known to absorb increased 
amounts of caesium regardless of origin.1032 
7.309.   The experts confirm that the data provided by Japan reasonably supports a conclusion that 
by 2015 the levels of caesium concentration in Japanese food, generally, retur ned to levels below 
100 Bq/kg.1033 Korea admits in that regard that none of over 188,000  consignments of Japanese 
food imported into Korea contained caesium in excess of 100 Bq/kg.1034 
                                                
1023 MAFF food monitoring results (April 2012 – March 2016), (Exhibit JPN -155), p. 1.  
1024 According to the results of tests conducted as part of the national food mo nitoring programme, 
29.55% of sa mples of game meat and 5.09% wild plants and wild edible fungi exceeded the 100 Bq/kg 
caesium tolerance level. However, these products are known to contain higher levels of radionuclides 
regardless of origin. This is borne o ut by the import testing data fr om both Japan and Korea, which show high 
levels of caesium in such products from Europe, China, and the United States. MAFF Overview of Korea's Test 
Results, (Exhibit JPN -158) and MAFF Import inspection results in Japan, (Ex hibit JPN -159). This proportion was 
much smaller for and for fishery products (both marine and freshwater – 1.5%). See MAFF food monitoring 
results (April 2012 – March 2016), (Exhibit JPN -155), p. 1; FAJ Monitoring Report,  (Exhibit JPN -43), p. 28.  
1025 MHLW Ca esium Monitoring Data of Food Pr oducts (April 2012 – July 2016), (Exhibit JPN -157); 
ERD Fisheries Data, (Exhibit JPN -130 (revised)).  
1026 Approximately 0.3% of samples of the 28 species tested from October 2013 until the establishment 
of the Panel contained more than 25 Bq/kg of caesium. MHL W Caesium Monitori ng Data of Food Products 
(April  2012– July 2016), (Exhibit JPN -157). The ERD database shows even lower levels.  
1027 Korea's opening statement at the first meeting of the Panel, para. 73; second wri tten submission, 
paras. 47 -49. 
1028 See MAFF ov erview of food monitoring results (April 2012 – March 2016), (Exhibit JPN -155). 
Nevertheless, these samples are included in the general food contamination level the Panel has examined.  
1029 MAFF overview of food moni toring results (April 2012 – March 2016), (Ex hibit JPN -155).  
1030 MHLW Caesium Monitoring Data of Food Products (April 2012 – July 2016), (Exhibit JPN -157).  
1031 MHLW Caesium Monitoring Data of Food Products (April 2012 – July 2016), (Exhibit JPN -157).  
1032 MHLW Caesi um Monitoring Data of Food Products (April 2 012– July 2016), (Exhibit JPN -157); see 
also experts' responses to Panel question No. 51 to the experts.  
1033 Experts' responses to Panel question No. 43 to the experts.  
1034 Data for the period between March 2011 and December 2015. While part of the data post -dates the 
establishment of the Pan el, the pre -establishment data are  sufficient to conclude that caesium was not  WT/DS495/R  
 
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  7.310.   Korea is correct that the data reflect that some samples out of the hundreds of thousands 
of samples tested through late 2015 had caesium levels in excess of 100 Bq/kg . Ms Brown explains 
that there are some very small percentages of food samples with activity concentrations greater 
than 100Bq/kg in some internally banned products.1035 Likewise, Dr Skuterud notes that the return 
to low levels can be attributed not only to r eduction in contamination levels in the contaminated 
areas, but also Japan 's strict management strategies and restrictions on food production in the 
most affected are as.1036 Based on the way Japan has formulated its claims against the additional 
testing requi rements, the Panel concludes that, unlike its challenges to the import bans, Japan is 
not limiting its claims relating to the additional testing to a particular subse t of products. 
Therefore, the Panel takes account of  these small amounts of products that exceed tolerance levels 
in its analysis , because  if Korea were to l ift bans on these products, these products  would be 
subject to the additional testing requirements . However, even including these samples does not 
change our overall conclusion that the pot ential for Japanese food products to contain caesium in 
excess of 100 Bq/kg is low.  
7.311.   Professor  Michel explains that "one will always (not only as a consequence of the  
Fuskushima accident) find food items exceeding the 100 Bq/kg." While surveillance measure ments 
should continue to try to detect these outliers, Prof essor Michel also notes that as the annual 
exposure due to caesium depends on the general  caesium activity concentration in the food, "even 
some not detected food items exceeding 100 Bq/kg would no t endanger the conformity of the food 
with the 1 mSv/year dose limit."1037 In other words, consuming a single fish or food product 
exceeding the radionuclide tolerance level would not automatically result in an increased risk for 
the consumer. This is because  the tolerance levels are set based on average consumption 
values.1038 Therefore, achieving Korea 's regulatory objective  of protecting against radiation 
exposure does not require each and every consumed product to contain radionuclides below the 
tolerance lev el.1039 According to Dr Skuterud, isolated cases of food items containing  radionuclides 
above the tolerance level do not constitute a food safety concern, which focuses on annualized 
production and subsequent consumption, rather than on each individual item.1040 Therefore, with 
respect to the maintenance of the import bans and the additional testing requirements the Panel 
finds that Japan has met its burden to establish that the potential for contamination with caesium 
in excess of 100 Bq/kg is low.  
7.312.   The next step  of the Panel 's analysis is to compare the potential for contamination with 
caesium in Japanese products, where Japan has met the burden of proof to establish it, with those 
of other origins. In that regard, Japan refers to import testing data from Korea a nd Japan, as well 
as knowledge about contamination resulting from pre -2011 releases of radionuclides. The Panel  
has not been given comprehensive testing data of non -Japanese products over all food categories. 
Recognising that direct measurements are the pr eferred method of determining actual levels of 
contamination, the Panel  finds the data provided can serve as a basis for a conclusion on general 
contamination in conjunction with the information available on contamination due to past releases 
throughout th e world and general knowledge on the uptake of rad ionuclides in food pr oducts. 
Dr Skuterud notes in this respect that:  
[B]ecause of few ongoing monitoring programmes and reviews of current 
contamination levels (reflecting the generally low contamination le vels and risks), it is 
not straightforward to get good estimates of cur rent levels of caesium in food products 
worldwide. Together with the general knowledge of global contamination levels, and 
the scientific understanding of the environmental behaviour of  the radionuclides, the 
datasets from import in Korea and Japan form a reliable basis for conclusions.1041 
                                                                                                                                                  
detected in excess of 100 Bq/kg in any consignment of Japanese food entering Korea. The post -establishment 
data confirm that this trend continue s. Korea's response to Panel question No. 120(c).  
1035 Ms Brown's response to Panel question No. 43 to the experts.   
1036 Dr Skuterud's response to Panel question No. 43 to the experts.  
1037 Professor Michel's respon se to Panel question No. 43 to the experts.  
1038 Expert Meeting Transcript, para. 1.194; Japan's opening statement at the second meeting of the 
Panel, Annex A, slides 27 -32 and Annex B, slides 27 -32. 
1039 Experts' responses to Panel question No. 81 to the expert s. 
1040 Expert Meeting Transcript, paras. 4.12 and 4.16. 
1041 Dr Skuterud's response to Panel question No. 50 to the experts.   WT/DS495/R  
 
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  In that sense, the specific data is used to confirm logical deductions from the more general 
knowledge. The Panel  notes that at this stage it is looking  at potential for contamination and 
not actual levels of contamination.  
 
7.313.   Ms Brown explain s that there is sufficient data to conclude that caesium is present in food 
from all over the world in trace amounts, mainly from  nuclear  weapons  testing  fallout, but also 
from Chernobyl. She state s that these levels are in general, very low and significantly lower than 
100 Bq/kg of caesium. Ms Brown also agrees  that concentrations of caesium in Japanese foods are 
likely to be higher than in non -Japanese foods, but thes e would also be very low and significantly 
lower than 100 Bq/kg.1042  
7.314.   The test results available for non -Japanese food products show particularly high levels of 
caesium in the food categories expected to have high concentration of radionuclides, such as 
mushr ooms, berries and their derivatives.1043With regard to fishery products, c aesium 
concentration levels were within a range of 0.23 and 16 Bq/kg.1044 Having compared these test 
results to those of Japanese products and taking into account the Panel 's findings abou t past 
releases of caesium, their global reach and potential to transfe r to food products, the Panel  
conclude s that the majority of both Japanese and non -Japanese products have potential to contain 
caesium in amounts below the 100 Bq/kg tolerance level. Dr  Skuterud explained that all raw food 
products around the world contain caesium within Korea 's tolerance levels. Recognizing that the 
risk of higher absolute contamination levels is of course larger in a really contaminated area "the 
data available shows t hat the probability of finding such levels in traded Japanese fo od is not 
higher than in non -Japanese food (due to Japan 's restrictions on production/fishing)."1045 The 
Panel  also find s that certain product categories, especially wild animals and plants, have  the 
potential  to contain caesium in excess of 100 Bq/kg, whethe r they originate from Japan or other 
Members . 
7.315.   Turning to strontium and plutonium, the data made available to the Panel show 
concentrations levels in Japanese food to have been well below Korea 's tolerance levels  at least  
since 2013.1046 For instance, the high est strontium level measured in 587 paired caesium and 
strontium test results was 14 Bq/kg.1047 Other datasets show even lower concentration of 
strontium detected in tested Japanese food.1048 As reg ards plutonium, the Panel  has already found 
that contribution of  the amounts of that radionuclide released from the FDNPP to the levels 
existing in the environment was minimal.1049 The food testing data made available to the Panel 
confirm that plutonium has b een found in Japanese products, if at all, in very low quantitie s and 
well below Korea 's tolerance level of 10 Bq/kg.1050 Dr Thompson explains that the data shows that 
the measurements of strontium -90 in Japanese food "have been either below detection limits or 
generally low" and of isotopes of plutonium "either not detec table or concentration were near the 
limits of detection."1051 
7.316.   Korea does not contest that strontium  and plutonium  have not been found in Japanese 
food products subject to testing above the respe ctive tolerance levels respective for these two 
radionuclides , nor does it question the accuracy of the experts ' statements.1052 Instead, Korea 
reiterates that the number and type of samples tested is insufficient, both with regard to samples 
                                                
1042 Ms Brown's response to Panel question No. 49 to the experts.  
1043 Overview of Korea's and Japan's test results for food from non -Japanese  origins, (Exhibit JPN -279).  
1044 Overview of Korea 's and Japan's test results for food from non -Japanese origins, (Exhibit JPN -279).  
1045 Dr Skuterud's response to Panel question No. 49 to the experts.  
1046 See also section 7.7.6 above. Regarding the sufficiency of s cientific information, 
see section  7.6.2 above.  
1047 MAFF, MOE, TEPCO data on paired caesium and strontium testing, (Exhibit JPN -240). Although 
Exhibit JPN -240 covers samples tested both before and after the establ ishment of the Panel, the Panel relies on 
the data available for th e period up until its establishment, using the post -establishment test results for 
confirmation purposes. The value of 14 Bq/kg is thus overall the highest measured concentration of stronti um 
in the whole dataset.  
1048 The highest strontium level measured as part of the ERD monitoring of agricultural, livestock and 
fishery products, was 1.3 Bq/kg. ERD Fisheries Data, (Exhibit JPN -130 (revised)). ERD Agricultural Products 
Data (agricultural prod ucts),  (Exhibits JPN -131.1); ERD Agricultural Products Data (milk),  (Exhibit  JPN-131.2); 
and ERD Agricultural Products Data (other food), (Exhibit JPN-131.3).  
1049 See section 2.5.1 above.  
1050 See para. 7.209  above.  
1051 Dr Thompson's response to Panel question No. 44 to the experts.  
1052 Korea's comments on experts' responses to Panel question No. 44 to the experts.   WT/DS495/R  
 
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  of Japanese and non-Japanese products, in order to draw valid conclusions on the  similarity of 
conditions.1053 In that regard, the Panel  refers to its finding in section 7.7.6.2  above  that data 
provided by Japan allows valid concl usions on the levels of caesium, strontium and plutonium in 
Japanese food products.1054 
7.317.   With regard to measured concentration levels of strontium and plutonium in non -Japanese 
food, the Panel  notes that it has  not been provided with comprehensive measurement data on 
products throughout the world. This is not unexpected, due to the complexity and time needed to 
prepare for and perform strontium  and plutonium  analysis.1055 Indeed , Korea does not test for 
strontium or p lutonium at the border. Its internal monitoring  for strontium and plutonium is 
conducted on a risk management basis and not done at the same frequency or volume as caesium 
testing. The Panel  notes that, with the exception of Japanese products, Korea does n ot test for 
strontium and plutonium at the bord er. Rather it either rejects products if they exceed 100 Bq/kg 
of caesium or it may conduct additional testing internally if the products are found to contain more 
than 0.5 Bq/kg of caesium. It is from this in ternal testing, that the Panel has available  data on  
some 251 samples of food from more than a dozen countries tested by Korea at the point -of-
sale.1056 The majority of samples show non -detectable levels of radioisotopes of strontium and 
plutonium, although s everal of them contained up to 10 Bq/kg of str ontium -90 and up to 
0.05 Bq/kg of plutonium -239 and -240.1057 Even those samples with detectable amounts of 
strontium and plutonium were below their respective tolerance levels. The Panel  recognise s that 
this is a  relatively limited number of direct measuremen ts. However, Dr Skuterud explains:  
[O]f course we need some measurements, but also from the knowledge and general 
knowledge of uptake all these elements in biological organisms, we can also assess 
the potentia l for these elements, these nuclides, reaching the permissible or guideline 
levels. When releases are low then environmental contamination levels are low and 
there is low uptake in organisms and there is nothing that indicates that their 
concentrations cou ld touch the guideline levels and the need for documentation for 
guideline levels is also low. Then there is no public health concern. It is not just about 
the number of fish being measured.1058 
7.318.   With respect to the comparison of strontium and plutonium levels  between Japanese food 
products and those from the rest of the world Prof essor  Michel explains that:  
The risk to find food with strontium -90 exceeding 100 Bq/kg is similarly negligible in 
Japan and the rest of the world. Exceptions can be expected in hypot hetical food from 
the exclusion zone around Che rnobyl and from the banks of the Techa River.1059 
7.319.   In light of the above, and taking into account generally low levels of strontium and 
plutonium released globally and from the FDNPP, the Panel  finds that food products from Japan 
and from other origins have si milar potential for containing strontium and pl utonium below  their 
respective tolerance levels.  
7.320.   With respect to Korea 's arguments about potential future increases in contamination 
because of potential future releases from the FDNPP, the Panel  finds that th ey are not relevant to 
its analysis of whether the conditions in food products were similar when Korea adopted the 
                                                
1053 Korea's second written submission, paras. 93 -101; comments on  Japan's response to Panel question 
No. 136.  
1054 See section 7.7.6.2  above.  
1055 Professor Michel notes that a much lower number of strontium analysis compared to gamma 
spectrometry is "a well -known fact" due a signi ficant amount of time needed to conduct the analysis and the 
measurements. Expert Meeting Transcript, para. 3.43. See als o experts' responses to Panel question No. 87 to 
the experts.  
1056 Approximately 147 of these samples were tested during the period preced ing the Panel's 
establishment. Results of Further Analysis at Point -of-Sale, (Exhibit KOR -283), pp. 1 -8. 
1057 Results of Fur ther Analysis at Point -of-Sale, (Exhibit KOR -283), pp. 1 -8. While the Panel has 
examined all data in the exhibit, the referenced maximu m values relate to the period before the Panel's 
establishment. The post -establishment data shows even higher levels of s trontium and plutonium detected in 
non-Japanese products.  
1058 Expert Meeting Transcript, para. 1.151.  
1059 Expert Meeting Transcript, para. 3.86. Ms Brown agrees that strontium concentration levels 
measured in fishery products are very low. Expert Meeting Trans cript, para. 3.205.   WT/DS495/R  
 
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  measures and as of the establishment of the Panel.1060 Moreover, there is no evidence on the 
record of additional significant releases since the  establishment of the Panel. If conditions do 
change, Korea is entitled to adjust its measures to those conditions, so long as its measures  are 
consistent with the pr ovisions of the SPS Agreement.  
7.321.   Taking all of the above into account, the Panel  finds that Japan has met its burden of proof 
in establishing that similar conditions existed in Japan and in other Members with regard to 
adoption of the 2013 additional testing  requirements. Japan has also established with respect to 
adoption of the blanket import b an that similar conditions existed in Japan and in other Members 
for the 27 fishery products  covered by Japan 's claim and for Pacific cod originating from Aomori, 
Chiba, Gunma, Iwate, Miyagi, and Tochigi prefectures. As regards maintenance of Korea 's 
measu res, Japan has met its burden of proof that similar conditions existed in Japan and in other 
Members for all food products, including the 28 fishery products , upon es tablishment of the Panel.  
7.322.   In conclusion, the Panel  has found similar conditions with respe ct to the adoption of the 
2013 additional testing requirements and the blanket import ban with respect to the 27 fishery 
products  covered by Japan 's claim and for Pac ific cod originating from Aomori, Chiba, Gunma, 
Iwate, Miyagi, and Tochigi prefectures and  that similar conditions existed with regard to the 
maintenance of Korea 's import bans and the additional testing requirements. Therefore the Panel  
will continue its analysis with respect to whether the measures arbitrarily or unjustifiably 
discriminate wi th respect to the adoption of the 2013 additional testing requirements and blanket 
import ban (for 27 fishery products  from 8 prefectures and Pacific cod from 6 prefectures) and the 
maintenance of all the measures. The Panel  will not continue with its analysis with respect to the 
adoption of the 2011 additional testing requirements or the product specific import bans, because 
Japan has failed to establish that similar conditions existed in that regard.  
7.8.2   Whether Korea 's measures discriminate between Japanese products and those of 
other Members  
7.323.   In light of the approach of interpreting discrimination in Article 2.3 consistently with the 
meaning  of the same term in the chape au to Article XX of the GATT 19941061, the panel in  US – 
Animals  concluded that "[t]he focus of a discrimination analysis is whether the measure at issue 
alters the conditions of competition to the detriment of products originating in the territories of 
Membe rs other than the Member imposing the measure or between the territory of the Member 
impos ing the measure and that of another Members."1062 The Panel  notes that "discrimination may 
arise not only from 'the detailed operating provisions ' of a measure, but also  from the application 
of a measure 'otherwise fair and just on its face '."1063 With these con siderations in mind, the Panel  
will examine in turn whether Korea 's import bans and additional testing requirements amount to a 
discriminatory treatment of Japanese p roducts.  
7.8.2.1   Import bans  
7.324.   It is undisputed between the parties that only Japanese products are subject to product -
specific and blanket import bans.1064 Because Korea 's import bans prevent Japanese products from 
being imported and marketed in Korea, they are as trade restrictive as measures can be.1065 As a 
result, Japanese products have no possibility of competing with products of other origins and, as 
such, they are afforded discriminatory treatment.   
7.325.   Therefore, the Panel finds that the  adoption of the  2013 blank et import ban afforded 
discriminatory treatment to 27 fishery products  from 8 prefectures and  Pacific cod from 
6 prefectures when it was adopted. The Panel also finds that the maintenance of the product -
specific bans  on Pacific cod and Alaska pollock,  as well as the 2013 blanket import ban for all 
28 fishery products  from all 8 prefectures , afford  discriminatory treatment to Japanese products.  
                                                
1060 See para. 7.195  above; See also experts' responses to Panel question  No. 91 to the experts.  
1061 Panel Reports, India – Agricult ural Products , para. 7.400; US – Animals , para. 7.570; and Russia – 
Pigs (EU) , para. 7.1316. See also Appellate Body Report, Australia – Salmon , para. 251.  
1062 Panel Report, US – Animals , para. 7.573.  
1063 Panel Report, Russia – Pigs (EU) , para. 7.1318.  
1064 See section 2.7.6 above.  
1065 See Appellate Body Report, Brazil - Retreaded Tyres , para. 150.   WT/DS495/R  
 
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  7.8.2.2   Additional testing requirements  
7.326.   Japan submits that Korea applies pre -market additional testing solely to Japanese 
products. Products not originating in Japan are, by contrast, allowed onto the Korean market 
without further testing at the border to check whether and to what degree they contain the 
additional radionuclides. Japan contends that high costs and time delays associated with the 
additional testing effectively prevent importation of fresh food from Jap an, which contains even 
trace amounts of caesium, significantly limiting market access and competitive opportunities for 
Japanese products.1066 This, according to Jap an, constitutes a de jure  discrimination against 
Japanese products.  Korea contests the discri minatory nature of its measures and submits that it 
also conducts  compulsory  additional testing on third -country imports and on Korean products if at 
least 1 Bq/kg  of caesium or iodine is detected.1067 Korea submits that t he additional testing is 
performed pu rsuant to the Korea Food Code (as amended in 2012)1068 and as implemented in the 
2014 Guidelines for Food Safety Management.1069 Korea notes that it has also provided st atistical 
information on the testing undertaken for caesium and additional radionuclides on f ood from third 
countries and domestic food.1070 Thus, Korea argue s that even on the assumption that Japan had 
established that conditions are identical or similar Jap an has failed to establish that there is 
differential treatment with respect to the additiona l testing.1071 
7.327.   The Panel  has already found that Korea requires that every consignment of Japanese 
products, in which more than 0 .5 Bq/kg  of caesium or iodine  have been detected, be tested for at 
least strontium and plutonium.1072 The Panel  has also noted that hi gh costs and time delays 
associated with the additional testing de facto  prevent consignments of some of the tested 
Japanese products from entering Korean market.1073 As regards third -country products, the Panel 
has determined that Korea does not subject them  to pre -market additional testing if caesium or 
iodine has been detected at the border.1074 These products are allowed to enter the Korean market  
if they contain less than 100 Bq/kg.1075 As a result, it is more difficult for Japanese food products 
containing bet ween 0.5 Bq/kg and 100 Bq/kg of caesium or iodine to enter the Korean market, 
than for food originating from third countries.  
7.328.   Korea argues, ho wever, that domestic and third -country products, in which 1 Bq/kg or 
more of caesium or iodine have been detected,  must undergo the additional testing at the point -
of-sale.1076 Likewise, Korea asserts that domestic products are subject to additional testing a t the 
production stage.1077 These testing procedures are, according to Korea, equivalent to the 
additional testing co nducted on Japanese products at the border and, as such, demonstrate that 
Korea does not discriminate against Japanese products, but simply ap plies similar measures at 
different points in time.1078 Japan calls into question Korea 's explanations, asserting tha t Korea has 
failed to provide evidence showing that Korea conducted testing for radionuclides on Korean 
products at the production stage.1079  
7.329.   As regards the point -of-sale testing, Japan argues that it differs from tests performed at -
the-border in four import ant aspects: (i) all products from Japan are subject to both at -the-border 
and point -of-sale additional testing, while products from other ori gins are never tested for the 
additional radionuclides  before  entering the market; (ii) while point -of-sale testin g is conducted 
only for strontium and plutonium, Japanese products have to be tested "for 17 other 
radionuclides"; (iii) point -of-sale testing  applies to 150 food products, whereas the at -the-border 
                                                
1066 Japan's first written submission, para. 424.  
1067 Korea's response to  Panel question No 109. For a more detailed discussion on the operation of 
Korea's additional testing requirements and Korea's arguments in that regard, see section 7.5 above.  
1068 See Article 1, "General Provision s", of the Korea Food Code (Exhibit KOR -123).  
1069 2014 Guidelines for Food Safety Management, (Exhibit KOR -158).   
1070 See Korea's response to Panel question No. 95.  
1071 Korea's s econd written submission, paras. 233 -235. 
1072 See section 7.5.3 above.  
1073 See section 7.7.4 above.  
1074 See para. 7.45 above.  
1075 See para. 7.45 above.  
1076 Korea's secon d written submission, paras. 234 -235. 
1077 Korea's response to Panel question No. 109.  
1078 Korea's second written submission, para. 234.  
1079 Japan's comments on Korea's responses to Panel question Nos. 109(a) and 109(b).   WT/DS495/R  
 
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  additional testing applies to all Japanese food; and (iv)  Japanese products have to be sent back to 
Japan to undergo the additional testing, while products of other origins can be tested in Korea.1080 
7.330.   With respect to the second point, the Panel  has already found that it has not been 
demonstrated that the measures u niformly require testing for all 17 additional radionuclides either 
at the border or at the point -of-sale.1081 With respect to Japan 's fourth poi nt, the Panel  has also 
found that the measures do not require that the products be sent back to Japan.1082 With respe ct 
to the other points, the Panel  agree s that applying the additional testing at the point -of-sale only 
to the 150 most frequently consumed pr oducts, but subjecting every consignment of Japanese 
food, in which more than 0 .5 Bq/kg of caesium or iodine has b een detected, to undergo the 
additional testing regardless of the type of food involved is discriminatory. In addition, the Panel  
agree s that the possibility of testing both at the border and at the point of sale doubles the burden 
on Japanese imports as compared to Korean and third -country products that could potentially be 
tested for the additional radionuclides only once. Such a doubling of p otential burden is 
discriminatory.  
7.331.   As regards Korea 's argument that pre -market testing on domestic products is equ ivalent to 
the pre -market testing on Japanese products conducted at the border, the Panel  refers to our 
findings that Korea has not demonstrat ed that the additional testing is conducted on domestic 
products at the production stage.1083 In addition, the Panel  notes that like the point -of-sale testing, 
testing at the production stage applies to the most frequently consumed food products and not all 
food products, as it is the case for Japanese imports.1084 
7.332.   In light of the above, the Panel  finds that Korea has faile d to show that the point -of-sale 
testing and pre -market testing on domestic products can be considered equivalent to the 
additional testing ad ministered on Japanese products at the Korean border. Thus, Korea has not 
rebutted Japan 's prima facie  case of dis crimination. Therefore, the Panel  finds Korea 's adoption of 
the 2013 pre -market additional testing requirements and the maintenance of both the 2011 and 
2013 pre -market additional testing requirements solely on Japanese products to be discriminatory.  
7.8.3    Whet her the discrimination is arbitrary or unjustifiable  
7.333.   Japan submits that both the import bans and the additional testing requirements 
discriminate against Japanese products in an arbitrary and unjustifiable manner as there is no 
rational connection between  the regulatory objective  pursued by Korea 's measures and the 
distinction drawn between Japanese products and food from other sources.1085 Japan argues that 
while a substantial difference in contamination levels could justify discrimination, these are similar  
for Japanese products and products from other sources both in absolute terms and taking into 
account Korea 's tolerance levels.1086 Accord ing to Japan, a low caesium content also limits the risk 
of presence of additional radionuclides making products from Jap an and other origins equally apt 
to meet Korea 's tolerance levels and, as such, present similar SPS risks.1087  
7.334.   Japan also presents hypoth etical scenarios to show that a fish caught in the same area  and 
having the same contamination level would be subject to different regulatory treatment depending 
on whether it was caught by a Japanese vessel and packaged and processed in one of the eight 
prefectures. For instance, the additional testing would apply to fish caught on the high seas by a 
Japanese vessel, while this would not be the case for the same type of fish caught in the same 
area by a Korean or a third -country vessel.1088 In addition, if th at fish is then packaged or 
processed in one of the eight Japanese prefectures, it will be subject to Korea 's blanket imp ort 
ban.1089 In a similar vein, Japan refers to certain statements by Korean officials and authorities in 
order to show that the additiona l testing requirements and import bans are detached from their 
                                                
1080 Japan's second written submission, paras . 47-51. 
1081 See section 7.5.4 above.  
1082 See section 7.5.5 above.  
1083 See section 7.5.1 above.  
1084 2014 Guidelines for Food Safe ty Management (Exhibit KOR -158), pp. 9 -13; 2015 Guidelines for 
Food Safety Management, (Exhibit KOR -281), pp. 11 -12. 
1085 Japan's first written submission, paras. 298 and 423 -425. 
1086 Japan's responses to Panel question Nos. 45 and 52; second written submission , para. 158.  
1087 Japan's second written submission, paras. 161 -162. 
1088 Japan's first written submission, paras. 432 -437. 
1089 Japan's first written submission, paras. 306 -308.  WT/DS495/R  
 
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  purported justification.1090 Japan concludes on that basis th at "the discriminatory treatment 
afforded Japanese food products by Korea 's import bans and pre -market additional testing 
requirements is arbitrary and unjustifiable ."1091 
7.335.   Korea, for its part, maintains that there is indeed a rational connection between its 
measures and their regulatory objective . Korea argues that any distinction entailed by the import 
bans and the additional testing requir ements is rationally connected to conditions prevailing in 
Japan and in other Members.1092 In support of its position, Korea  returns to its arguments 
purporting to show that conditions in Japan are different compared to the rest of the world, given 
the allege dly higher potential for contamination resulting from the FDNPP accident.   In particular, 
Korea cites to the Appellate Bo dy report in EC – Hormones  for the premise that dealing with the 
risks of ambient or background exposure or presence of certain contami nants is different than 
dealing with additional exposures that are not naturally occurring.1093 Korea argues on that basis 
that it would be improper to conduct the discrimination analysis based on a comparison of the 
risks of radioactive contamination in Japa nese products against the risks of pre -existing or 
background contamination affecting all products regardless of origin.1094 Korea also disputes that 
Japanese products have similar levels of radioactive contamination as products from the rest of the 
world.1095 Korea reiterates its position that the evidence provided by Japan to support its assertion 
with regard to contamination le vels in Japanese products is flawed and constitutes an 
inappropriate basis for a finding of arbitrary or unjustifiable discrimination.1096 
7.336.   Korea further denies that the official statements referenced by Japan could demonstrate 
any other objective of the measu res than protection of the Korean population from risks associated 
with the contamination caused by the FDNPP accident.1097 Moreover, Kore a argues that using the 
nationality of the fishing vessel or the location of the processing or packaging plant is the onl y 
feasible way of determining the origin of products, due to administrative difficulties related to that 
process.1098 Korea also seeks to justify this practice by pointing to instances of forgery of official 
Japanese certificates of origin.1099 Additionally, Kor ea disputes Japan 's characterization of the 
additional testing requirements as a ban, because Japanese products that have the proper te sting 
certificates are admitted onto the Korean market.1100  
7.337.   Similarly to the other elements of Article 2.3 , the Panel  looks to the interpretation of 
arbitrary and unjustifiable discrimination under the chapeau  to Article XX of the GATT 1994 for 
guidance.1101 Accordingly, prior panels found that the assessment of whether discrimination is 
arbitrary or unjustifiable involves an inq uiry into the rational connection between the 
discrimination and the stated objectives of the measure.1102 Therefore, in making its 
determination, the Panel will focus "on the cause of the discrimination, or the rationale put forward 
to explain its existence. "1103 The Panel will examine not only "the detailed operating provisions of 
the measure" but also the manner in which the measure "is actually applied".1104 
7.338.   In the context of Article 5.5, the panel and the Appellate Body in Australia -Salmon  
identified three warn ing signals for evaluating when discrimination is present. These are: (i) the 
arbitrary or unjustifiable character of the differences in levels of protection;1105 (ii) rather 
substantial difference in levels of protection;1106 and (iii) the inconsistency of the challenged 
                                                
1090 Japan's second written submission, paras. 168 -173. 
1091 Japan's second written submissi on, para. 174.  
1092 Korea's second written submission, para. 239.  
1093 Korea's first written submission, para. 190 (citing Appellate Body Report, EC – Hormones , para. 
221).  
1094 Korea's first written submission, paras. 188-190. 
1095 Korea's second written submission, para. 216.  
1096 Korea's first written submission, para. 191.  
1097 Korea's second written submission, para. 242 . 
1098 Korea's second written submission, paras. 244 -247. 
1099 Korea's second written submission, paras. 244 -247. 
1100 Korea's first written submission, para. 21 7. 
1101 Panel Report, India – Agricultural Products , para. 7.427.  
1102 Panel Reports, US – Poultry (China) , para. 7.261; and US – Animals , para. 7.574.  
1103 Panel Report, US – Animals , para. 7.574 (citing the Appellate Body Report, Brazil – Retreaded 
Tyres , para. 2 26). 
1104 Appellate Body Report, US – Shrimp , para. 160.  
1105 Appellate Body Report, Australia – Salmon , para. 161.  
1106 Appellate Body Report, Australia – Salmon , para. 163.   WT/DS495/R  
 
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  measure with Articles 5.1 and 2.2 of the SPS Agreement.1107 The panel in US – Animals  applied the 
same warning signals to its analysis under Article 2.3.1108 The Panel  notes that Article 5.6 is seen 
as a specific application  of the basic obligation in  the first requirement of Article 2.2.1109 Therefore, 
in the Panel 's view, like inconsistency with Articles 5.1 and 2.2, the inconsistency of the challenged 
measures with Article 5.6 also serves as a strong indication or  a warning signal of arbitrary or 
unjus tifiable discrimination. Likewise, the Panel is  of the view that claiming to have adopted a 
measure provisionally pursuant to Article 5.7 and then not reviewing the measure within a 
reasonable period of time can also be an indication that the measure is no t rationally connected to 
their stated purpose.  
7.339.   As regards Korea 's reliance on the report in EC – Hormones  and the distinction drawn by 
the Appellate Body between exposures that are not naturally occurring and risks resulting from 
ambient or background exp osure, the Panel notes that the facts of this dispute differ significantly 
from that before the panels and the Appellate Body in EC – Hormones . More specifically, the 
Panel 's assessment, including the comparison of the levels of contamination in Japanese a nd non -
Japanese food is focused on radiation resulting from man -made radionuclides contaminating food. 
The Codex standard CODEX STAN  193-1995, which Korea incorporate s in its regulatory 
framework, relates  exclusively  to man-made radionuclides . The radionuc lides that naturally occur 
in the environment are  not the concern in this case.1110 This is not a situation of the comparison of 
a man -made phenomenon to a naturally occurring one (e.g. synthetic hormones to natural ones), 
but rather to the same  man-made radi onuclides released at different times from different events 
(such as  nuclear weapons use and testing and releases from nuclear facilities ). The Panel  also 
notes Korea 's statement that through its measures, it seeks to keep exposure from all man-made 
radion uclides from any  source as low as  reasonably achievable below  1 mSv/year.1111 Therefore, 
the Panel is of the view that the distinction drawn in the  Hormones  dispute, is not applicable in this 
case. 
7.340.   Recalling that the three elements identified in the first sen tence of Article 2.3 inform each 
other and cannot be analysed in strict isolation, the Panel  conclude s that the level of risks posed 
by Japanese products and the degree of discrimination resultin g from the measures will be 
particularly relevant in assessin g whether the discrimination is rationally related to the stated 
regulatory objective of the measures .1112 With these considerations in mind, the Panel  will examine 
in turn whether Korea 's import ba ns and additional testing requirements discriminate against 
Japanese products in an arbitrary or unjustifiable manner.  
7.8.3.1   Import bans  
7.341.   The Panel  recall s that for Pacific cod and Alaska pollock, Japan has not established that 
similar conditions existed when Kor ea adopted the product -specific import bans on these products  
in 2012. However, the Panel  also recall s that Korea relied on Japan 's assessment of the risk posed 
from consumption of Alaska pollock and Pacific cod fro m the five Japanese prefectures in adopting 
import bans on these products.  Between October 2012 and Fe bruary 2015, Japan lifted its 
restrictions on both species pursuant to its internal guidelines.1113 Nevertheless, as already noted, 
Korea continues to maintain its own bans and has not reviewed them as of the date of 
establishment of the Panel.1114 Indeed, inste ad of reviewing the product -specific bans with an eye 
to removing them, in September 2013, Korea expanded its import bans to cover all fishery 
products from eight Japanese pr efectures.1115 Korea acknowledges that it has not completed  a risk 
assessment with re spect to that measure .1116Korea argues it was reviewing the measure , but the 
Panel notes that such review has not been concluded .1117 The Panel  has already found that there 
was suf ficient scientific evidence at the time to conduct a risk assessment of the measur es and 
that there were similar conditions with respect to all 28 fishery products  covered by Japan 's 
                                                
1107 Appellate Body Report, Australia – Salmon , para. 165.  
1108 Panel Report, US – Animals , para . 7.585.  
1109 Panel Reports, EC – Hormones (Canada) , para. 8.99; and EC – Hormones (US) , para. 8.96.  
1110 CODEX STAN 193 -1995, (Exhibit JPN -32), p. 52.  
1111 Korea's opening statement at the second meeting of the Panel, para. 67.  
1112 Appellate Body Report, India – Agricultural Products , para. 5.261.  
1113 See section 2.6 above.  
1114 See section 2.7.6 above.  
1115 Korea's first written submission, para. 56.  
1116 Korea's first written submission,  para. 56.  
1117 Korea's first written submission, para. 56; response to Panel question No. 151.   WT/DS495/R  
 
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  claims, except for Pacific cod from Fukushima and Ibaraki.1118 Moreover, the Panel  has found that 
Korea did not review the measures within a reasonable period  of time as required by Article 5.7. 
This fact, coupled with the lack of a risk assessment, constitute s a strong indication that the 
measure is a trade -restrictive measure ta ken in the guise of an SPS measure.1119 
7.342.   Korea argues that the discriminatory treatmen t is justified. However, Korea 's arguments 
focus, once again, on the environmental conditions in Japan and an array of hypothetical fears 
about future contamination. The Pane l recall s that it has  concluded that the potential 
contamination of Japanese produ cts is similar to that of products from the rest of the world in that 
the caesium content is below 100 Bq/kg. Indeed, in 2013 when the blanket import ban was 
adopted, all sam ples of the 28 fishery products  from the 8 prefectures subject of Japan 's claim, 
except for 6 samples of Pacific cod from Fukushima and Ibaraki, were found to contain well below 
100 Bq/kg of caesium.1120 The same conclusion can be drawn for all of these 28 fishery products , 
including Pacific cod, with respect to the maintenance of the blan ket and the product -specific 
import bans. The Panel  also recall s its finding that most of samples of the 28 fishery pr oducts  
tested since October 2013 contained between 0 and 25 Bq/kg.1121 As regards strontium and 
plutonium, the Panel  recall s its findings tha t their contribution to the risk of radiation exposure 
from consumed food was minimal.  
7.343.   In light of very low levels of caesium and additional Codex radionuclides detected in 
Japanese food, the Panel  fails to see a rational connection between an absolute imp ort ban on 
these products and the measure 's stated purpose of protecting Korean consumers against the risk 
posed by ra dionuclides in food in excess of Korea 's tolerance levels. In the Panel 's view, Korea 's 
import bans constitute the type of "rigid and unbe nding requirement", which applies regardless of 
the risk profile of imported products.1122 In particular, the measure s do not provide for any 
mechanism, which would allow demonstrating low risk level in the banned products  thus 
permitting  their importation to  Korea. In addition, the Panel  notes that Korea does not apply 
similar bans to non -Japanese products expected to be hi ghly contaminated, including in excess of 
Korea 's tolerance levels.1123 Instead, for those products, Korea applies a caesium  tolerance  level of 
100 Bq/kg. This, in the Panel 's view, is a strong indication that the distinction drawn by the 
measure is not ratio nally related to the stated regulatory objective . Importantly, the Panel  recall s 
its finding that another measure exists which is technica lly and economically feasible, significantly 
less trade restrictive, and achieves Korea 's ALOP. The inconsistency of t he import bans (product 
specific and blanket) with Article 5.6 is a strong indication that any distinction in treatment is not 
rationally related to the stated regulatory objective , but rather a further warning signal that the 
discrimination resulting from  Korea 's import bans is arbitrary or unjustifiable.  
7.344.   The Panel  also note s that Korea applies its import bans to Japanese products depending  on 
the prefecture of origin. This prefecture is determined based on either the prefecture of catch, of 
the food proce ssing, or packaging plant.1124 If more than one prefecture is involved in production, 
then the prefecture subject to the most restrictive mea sure is used for origin. For example, a fish 
caught in Tokyo, but processed in Gunma would be subject to the ban, even  though Tokyo is not 
listed as one of the prefectures covered by the ban. In this respect, the experts agree that the 
location of a food p rocessing or packaging plant alone does not affect the levels of contamination 
of processed or packaged products.1125 As a result, the Panel finds such a manner of applying the 
                                                
1118 See section 7.6 above.  
1119 Appellate Body Report, Australia – Salmon , para. 166. The Panel is mindful that in Australi a – 
Salmon , the Appellate Body found that a violation of Article 5.1 of the SPS Agreement w as a "warning signal" 
that could be taken into account in the assessment of consistency of measures with Articles 5.5 and 2.3. 
Although Japan does not make a claim u nder Article 5.1, the Panel considers the fact that Korea has not 
reviewed the measure with in a reasonable period with an aim to conducting a risk assessment following the 
imposition of import bans on the 28 fishery products a circumstance that the Panel s hould take into account in 
its analysis whether Korea's measures constituted arbitrary or u njustifiable discrimination or a disguised 
restriction in international trade.  
1120 MHLW Caesium Monitoring Data of Food Products (April 2012 – July 2016), (Exhibit JPN -157); ERD 
Fisheries Data, (Exhibit JPN -130 (revised)).  
1121 See section 7.8.1.3  above.  
1122 Appellate Body Report, US – Shrimp , para. 163. See also Panel Report, India – Agricultural 
Products , para. 7.435.  
1123 Korea doe s not ban imports of products known to absorb radionuclides in high concentrations, such 
as forestry products, fungi, and game meat from areas affected by nuclear releases.  
1124 Korea's response to Panel question No. 47.  
1125 Experts' responses to Panel question  No. 67 to the experts.   WT/DS495/R  
 
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  import bans not to be exclusively related to addressing the potential contaminatio n of the 
products.  
7.345.   In addition, Japan points out that a fish caught on the high seas by a Japanese vessel, 
which is p rocessed or packaged in one of the eight prefectures, will be subject to Korea 's import 
bans. However, the same type of fish caught in the  same area by a Korean or a third -country 
vessel will be able to freely access the Korean market, even if it is processed or packaged in 
Japan.1126 Korea argues that it follows the "flag state doctrine" and attributes origin of a product to 
the nationality of  a vessel because of "technical and economical limitations."1127 Additionally, Korea 
states that it cannot rely on Japanese origin certificates due to instances of forgery and inability of 
the Japanese government to properly track the origin of products.1128 Korea's import bans are 
predicated on the theory that it is addressing the risk associated with particular fishery species 
from particular locations. However, it would allow products from the same area and presumably 
posing the same potential for contaminatio n free entry into its market if they were caught by a 
vessel flying a non -Japanese flag. Determining origin of f ish caught on the high seas here may 
pose some practical difficulties, but leaving such large room for differential regulatory treatment 
on this  basis indicates, in the Panel 's view, that the measures are not tailored to the stated 
regulatory objective . Additionally, the Panel  fails to see how alleged instances of forgery of origin 
certificates for prefectures within Japan  can justify differential  treatment of products based on 
whether a ship is flying a Korean or a Japanese flag when it catches a fish.   
7.346.   The risk of non -compliance with SPS measures, such as forging an origin certificate, is 
relevant to an assessment of risk and also whether partic ular distinctions in treatment are 
justified. However, Korea has not demonstrated a systemic failure in Japanese  monitoring and 
certification of food products. Rather, Korea alleges 22 cases of forged certific ates of origin in 2013 
and 2014 out of  38,033 a nd 38,682 consignments of food products , which Korea imported  from 
Japan  in these years respectively .1129 The Panel  understand s that each consignment would have 
had to be accompanied by at least one certificate of origin. Seen in that context, the 22 cases of  
forgery do not seem to us a factor that could undermine the overall credibility of Japan 's origin  
tracking . In addition, none of these consignments, presumably including the 22 cases referred to 
by Korea, contained caesium or other radionuclides in excess  of Korea 's tolerance levels.1130 Last 
but not least, the Panel  notes that Korea continues to use Japanese certific ates of origin in order to 
determine whether a product is subject to an import ban or whether  the pre-export caesium 
testing requirement applies .1131 Therefore, the Panel  does not see how occasional criminal activity 
in origin certification provides a rationa l basis for justifying a total import ban on 28 fishery 
products  from 8 prefectures.  
7.347.   Japan also cites several statements contained in various pr ess releases announcing the 
measures as evidence that Korea 's intent was to prevent Japanese trade rather than p rotect 
Korean consumers from contaminated food. In the Panel 's view while such statements could be 
relevant to the Panel 's assessment of whether  discrimination is arbitrary or unjustifiable,1132 they 
have to be approached with caution and read in their proper  context.1133 For instance, a press 
release issued by Korea 's Prime Minister 's Office, stating that "distribution of fishery products from 
[the 8 J apanese prefectures] will be completely banned in Korea regardless of their radioactive 
contamination" simply refers to the restrictive nature of the import ban, which has been duly taken 
into account by the Panel.1134 As regards the Letter from Korea 's Minis try of Oceans and Fisheries, 
stating that "Korean fishermen are in a dismal condition su ffering from huge losses", the Panel  
notes that the quotation provided by Japan omits the reason for such a situation of Korean 
fishermen, namely low consumption of  marine products caused by the fear of contamination. The 
entire sentence reads that:  
                                                
1126 Korea's response to Panel question No. 47.  
1127 Korea's response to Panel question No. 47.  
1128 Korea's response to Panel question No. 20; second written submission, paras. 245 -246. 
1129 Korea's response to Panel question No. 120(c).  
1130 Korea's response to Panel question No. 120(c).  
1131 See section 2.7.1 above.  
1132 Panel Report, Mexico – Taxes on Soft Drinks , para. 8.91 (citing Appellate Body Report, Canada – 
Periodicals , pp. 30 -32). 
1133 See in that con nection, Panel Report, EC – Large Civil Aircraft , paras. 7.1919 -7.1920 . 
1134 PMO Blanket Import Ban and Additional Testing Requirements Press Release  (Exhibit JPN -3.b), p.  1. 
(emphasis omitted)   WT/DS495/R  
 
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  Along with this, please  note the fact that consumption of fish and fishery products in 
Korea has dropped sharply due to concerns over radioactive contamination and 
Korean fis hermen are in a dismal condition suffering from huge losses.1135 
7.348.   If anything, this statemen t reflects a desire of the Korean government to reintroduce trust 
among Korean consumers in the country 's handling of potentially contaminated items and help 
improve co nsumption of fishery products in Korea. We also fail to see how quotes from research 
papers prepared by Korea 's National Assembly Research Services can reflect decisions by the 
Korean Government.1136 Therefore, the Panel  does not agree with Japan that these s tatements 
should be given significant weight in the Panel 's assessment of whether the di scrimination is 
arbitrary or unjustifiable.  
7.349.   Overall,  however,  the Panel finds that Korea 's import bans are not rationally connected to 
the objective of protecting Korea 's population against the risk arising from consumption of 
contaminated food products. The Panel 's conclusion is based on a cumulative assessment of the 
following factors: (i) high degree of trade -restrictiveness of the measures, (ii) levels of caesium 
and additional Codex radionuclides measured in the relevant Japanese fishery species well b elow 
Korea 's tolerance levels (iii) lack of review of the measures within a reasonable period of time  with 
a view to conducting a risk assessment , (iv) the Panel 's find ings that the import bans are 
inconsistent with Article 5.6 and (v) disregarding the ori gin and contamination levels of a product 
harvested by a Japanese ship and packaged or processed in one of the eight prefectures.  
7.350.   As a result, the Panel concludes that Korea 's maintenance of product -specific bans on 
Alaska pollock from Fukushima and Pacifi c cod from Aomori, Fukushima, Ibaraki, Iwate and Miyagi, 
as well as of the blanket import ban on 28 fishery products  from 8 Japanese prefectures amounts 
to arbitrary or  unjustifiable discrimination. Likewise, the Panel  finds the discrimination resulting 
from the adoption of the blanket import ban on 27 fishery products  from the 8 prefectures , and on 
Pacific cod from 6 prefectures (i.e.  excluding Pacific cod from Fukushim a and Ibaraki), to 
constitute arbitrary or unjustifiable discrimination.  
7.8.3.2   Additional testing requirements  
7.351.   The Panel  recall s that Korea 's testing requirements have the same regulatory purpose as 
the import bans, namely to protect the Korean population agains t radiation exposure from food 
contaminate d by caesium and the additional Codex radionuclides.1137 The Panel has already found 
that the additional testing requirements are highly restrictive measures, effectively preventing 
imports of fresh Japanese food prod ucts, in which more than 0 .5 Bq/kg of caes ium or iodine has 
been detected.1138 Korea maintains these measures despite a similar potential for containing 
caesium and additional radionuclides in excess of Korea 's tolerance levels in Japanese and non -
Japanese pr oducts. Even with similar conditions withi n the context of the risk of exceeding Korea 's 
tolerance levels, the Panel cannot thus exclude that certain differences in absolute concentration 
levels of caesium between Japanese and non -Japanese food products mi ght justify some level of 
discrimination i n applying a caesium testing regime. For example, Japan does not contest Korea 's 
application of caesium testing to randomly selected samples from all Japanese consignments when 
such tests are simply random for prod ucts of other origins.  
7.352.   The Panel recalls t hat the additional testing is triggered for Japanese products, even if 
slightly more than  0.5 Bq/kg of caesium or iodine is detected. Meanwhile, products of other origins 
containing up to 100 Bq/kg of caesium , and presumably some additional radioisotopes, are allowed 
onto the Korean market without additional testing. This low threshold for triggering additional 
testing is belied by Korea 's own stated tolerance levels and admissions from MFDS officials that 
"[a] trac e amount of radioactive materials has no r elation to food safety." 1139 The application of 
additional testing seems even less connected to the purpose of the measure when one recalls that 
                                                
1135 2013 Letter from Korea's Ministry of Oceans and Fisheries to th e Fish eries Agency of Japan, 
(Exhibit  JPN-5.b), p. 2.  
1136 September 2013 NARS Research Paper, (Exhibit JPN -67.b), p. 1; June 2015 NARS Research Paper, 
(Exhibit JPN -104.b), p. 45.  
1137 Korea's first written submission, para. 38.  
1138 See para. 7.154  in section 7.7.4 above.  
1139 News Min, "Cesium detected in domestic green tea" (19 March 2014) (English Translation), 
(Exhibit  JPN-106.b), p. 2 quoting an MFDS officer.   WT/DS495/R  
 
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  Korea does not conduct at -the-border testing for the additional radionu clides even with regard to 
countries and p roducts, in which higher concentration of radionuclides have been detected than in 
Japanese products.1140 Furthermore, the Panel  recall s our finding under Article 5.6 that testing for 
100 Bq/kg of caesium alone would be sufficient to ensure that levels of add itional radionuclides 
would be less than Korea 's tolerance levels.  
7.353.   The Panel  further refer s to its findings regarding Korea 's practice of administering import 
bans on Japanese products strictly on the basis of the nationality of the fishing vessel or locat ion of 
the processing or packaging plant, regardless of the products ' origin and contamination levels, 
which apply mutatis mutandis  to the additional testing requirements.1141 In particular, the Panel  
notes that, for example, a fish caught on the  high seas by a Japanese vessel would have to 
undergo the additional testing upon importation to Korea, if more than 0.5 Bq/kg of caesium or 
iodine has been detected in the product. However, the same type of fish cau ght in the same area 
by a Korean or a third -country vessel, can be imported to Korean market without being subject to 
the additional testing  requirements , even if it 's processed or packaged in Japan.1142 As noted in the 
Panel 's findings regarding the import b ans, such a  manner of applying the additional testing 
requirements is not rationally related to the potential risk arising from importing contaminated 
products. Therefore, the Panel  consider s the additional testing requirements not to be exclusively 
relate d to addres sing the potential contamination of the products.  
7.354.   Finally, regarding Korea 's argument alleging insufficient knowledge about the levels of 
contamination in Japanese food products, the Panel  refers to its findings under Article 5.7, where 
the Pane l held that  such information was available at the time of adoption of the 2013 additional 
testing requirements and remained available as of the establishment of the Panel.1143 Despite 
sufficient information being available, Korea has  not completed  a risk asse ssment of t he 2013 
additional testing  requirements , which, as already noted, is a warning signal that the measure  is 
not exclusively concerned with its regulatory objective.   
7.355.   Based on all of the foregoing, the Panel  finds that there is no rational connecti on between 
the discrimination resulting from applying the additional testing requirements to Japanese food 
products and the stated regulatory objective  of the measure. Therefore, the Panel  consider s the 
discriminatory treatment afforded by the additional t esting requ irements when they were adopted 
in 2013 as well as the maintenance of  both the 2011 and the 2013 additional testing requirements 
to constitute  arbitrary or unjustifiable discrimination.  
7.8.3.3   Whether Korea 's import bans and the additional testing requ irements co nstitute 
a disguised restriction on international trade  
7.356.   As regards the obligation established by the second clause of Article 2.3, namely that 
SPS measures do not constitute disguised restrictions on international trade, previous panels have 
followed the r easoning of the Appellate Body in US – Gasoline  concerning the relationship between 
"arbitrary or unjustifiable discrimination" and "disguised restriction on international trade" as they 
appear in Article XX of the GATT 1994.1144 Pursuant to this reasoning, " arbitrary or unjustifiable 
discrimination" is a form of the broader category of "disguised restriction o n international trade", 
so that the latter encompasses the former. As a consequence, a finding that the application of an 
SPS measure results in arbitra ry or unjustifiable discrimination automatically leads to a finding that 
this SPS measure also constitutes a disguised restriction o n international trade.1145  
7.357.   Japan submits that a Panel 's finding of arbitrary or unjustifiable di scrimination would 
necessarily  lead to a conclusion that the measures are a disguised restriction on international 
trade.1146 Japan also provides further grounds for a finding under  the second sentence of 
Article  2.3 that are unrelated to the finding under th e first sentence.1147 In particul ar, Japan relies 
                                                
1140 For instance,  the results of Korea's point -of-sale testing show that the concentration level of 
strontium in a fungus from a third country  was higher than any strontium level measured among all tested 
Japanese products, including shellfish. Results of Further Analysis at Point -of-Sale, (Exhibit KOR -283), p. 7.  
1141 Korea's response to Panel question No. 47.  
1142 Korea's response to Panel question No. 47.  
1143 See section 7.6 above.  
1144 Appellate Body Report, US – Gasoline , p. 25.  
1145 Panel Report, US – Animals , para. 7.575; Panel Report, India – Agricultural Products , para. 7.476.  
1146 Japan's second written submission,  paras. 311 and 443 . 
1147 Japan's first written submission, paras. 312 and 446; second written submission, para. 212.   WT/DS495/R  
 
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  upon various statements from Korean government officials to the effect that the measures would 
keep out Japanese products as evidence that Korea 's intent was to exclude Japanese products 
from its market.1148 Moreover, Japan offers two argumen ts relating to the additional testing 
requirements in particular: (i) that the measure is a de facto import ban on fresh food with trace 
amounts of caesium, even if those traces are below – often far below – Korea 's tolerance limit; 
and that (ii) Korea has , at least once, rejected the importation of a Japanese product even though 
additional testing was performed in Korea and proof of compliance with the relevant threshold was 
submitted.1149 This, according to Japan, shows that hea lth concerns are not the real motive behind 
Korea 's measures.1150 
7.358.   Korea refers back to its arguments regarding the arbitrary or unjustifiable nature of 
discrimination, which should be also considered under Article 2.3, second sentence.1151 In 
particular, Korea m aintains that the statements b y Korean officials should not be given weight by 
the Panel and that Korean measures were adopted to address the contamination risk resulting 
from the FDNPP accident.1152 Korea also contests the "prohibitive" nature of the additio nal testing 
requirements, as t he measure merely mandates providing a non -contamination certificate.1153 
Finally, Korea contests Japan 's allegations that a consignment, for which the additional testing had 
been successfully completed, was refused entry to Kore a.1154 
7.359.   As the Panel has already f ound inconsistency of Korea 's measures with the first sentence 
of Article 2.3, the Panel  finds that the import bans and additional testing requirements constitute 
equally a disguised restriction on international trade. As a re sult, the Panel finds it unnec essary to 
consider other grounds put forward by Japan to support its claim under Article 2.3 second clause 
and exercises judicial economy with respect to them.  
7.8.4   Conclusion  
7.360.   In light of the foregoing, the Panel finds that the 201 3 additional testing requireme nts and 
the blanket import ban with respect to the 27 fishery products  subject to Japan 's claim from  the 
8 prefectures and Pacific cod from 6 prefectures, i.e. excluding Pacific cod from Fukushima and 
Ibaraki, were inconsisten t with Article 2.3 , first sent ence of the SPS Agreement when Korea 
adopted them and, as a consequence, also with Article 2.3, second sentence . Moreover, by 
maintaining the product -specific and blanket import bans on the 28 fishery products  from the 
8 prefectures and the 2011 and 2013 a dditional testing requirements on Japanese products, Korea 
acted inconsistently with Article 2.3 , first sentence of the SPS Agreement  and, as a consequence, 
with Article 2.3, second sentence . The Panel exercises judicial economy on Japan 's alternative 
reasons for inconsistency of the measures with second sentence of Article 2.3.  
7.9  Control, inspection and approval procedures  
7.361.   Article 8 of the SPS Agreement states as follows:  
Members shall observe the provisions of Annex  C in the operation of control, 
inspectio n and approval procedures, including national systems for approving the use 
of additives or for establishing tolerances for contaminants in foods, beverages or 
feedstuffs, and otherwis e ensure that their procedures are not inconsistent with the 
provisions of this Agreement.  
7.362.   Japan makes claims under Annex C(1)(a), Annex C(1)(c), Annex C(1)(e) and Annex 
C(1)(g). These provisions state:  
Members shall ensure, with respect to any procedure t o check and ensure the 
fulfilment of sanitary or phytosanitary measures,  that:  
                                                
1148 Japan's first written submission, paras. 312 and 446; second written submission, para. 212.  
1149 Japan's first written submission, paras. 444 -445. 
1150 Japan's first written submission, para. 445.  
1151 Korea's first written submission, para. 221.  
1152 Korea's first written su bmission, paras. 223 and 227.  
1153 Korea's first written submission, para. 224.  
1154 Korea's first written submission, para. 226.   WT/DS495/R  
 
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  (a) … are undertaken … in no less favourable manner for imported products than for 
like domestic products;  
(c) information requirements are limited to what is necessary for ap propriate control, 
inspection and approval procedures, including for app roval of the use of additives or 
for the establishment of tolerances for contaminants in food, beverages or feedstuffs;  
(e) any requirements for control, inspection and approval of in dividual specimens of a 
product are limited to what is reasonable and ne cessary;  
(g) the same criteria should be used in the siting of facilities used in the procedures 
and the selection of samples of imported products as for domestic products so as to 
minimize the inconvenience to applicants, importers, exporters or their age nts[.]  
7.363.   Japan alleges that elements of Korea 's additional testing requirements are inconsistent 
with subparagraphs (a), (c), (e) and (g) of Annex C(1) and as a consequence they are also  
inconsistent with Article 8. It is well established that Annex C to the  SPS Agreement gives meaning 
and substance to Article 8, and, by the terms of that Article, an inconsistency with the obligations 
in Annex C will also entail an inconsistency with Arti cle 8.1155 Therefore, if the Panel finds that the 
additional testing requir ements are inconsistent with any of the subparagraphs  of Annex C(1) 
raised by Japan, the Panel  would necessarily also find an inconsistency with Article 8.  
7.364.   The Panel  recall s that Korea 's additional testing requirements consist of two measures, the 
first ad opted in 2011 with respect to non -fishery products (except livestock products) and the 
second one in 2013, extending the scope of the additional testing requirements to all fishery and  
livestock products. Both of these measures operate in the same manner, although they apply to 
different groups of products. Where Japan 's claims relate to the operation of the measures and not 
their product coverage, the Panel  will assess them together an d the Panel 's findings will be equally 
applicable to both measures.  
7.9.1   Whet her Korea 's additional testing requirements fall within the scope of Article 8 
and Annex C  
7.365.   Article 8 and Annex C apply to a specific subset of SPS measures, namely procedures that 
check and ensure the fulfilment of SPS measures. The Panel  will thus begin b y addressing whether 
Korea 's 2011 and 2013 additional testing requirements fall within the scope of Article 8 and Annex 
C(1). 
7.9.1.1   Any procedure  
7.366.   Previous panels have found that the provisio ns of Annex C(1) "cover a broad array of 
procedures, as the drafters of the SPS Agreement did not limit the scope of those 'procedures ' to 
any specific type of 'approval procedures '."1156 A procedure, therefore, is covered by the provisions 
of Annex C(1) "so long as that 'procedure ' is aimed at 'checking and ensuring the fulfilme nt of 
sanitary or phytosanitary measures '".1157 The Appellate Body confirmed Annex C(1) 's broad scope 
of application in Australia – Apples holding that Annex C(1) does not preclude , a pri ori, any 
measures from being an appropriate target of a claim of inconsi stency with the Annex C(1).1158 For 
example , the panel in US – Animals  considered the determination of a disease status in a region to 
be a procedure within the meaning of Annex C(1).1159 
7.367.   Japan relies on these prior interpretations to contend that the phrase "an y procedure" in 
the chapeau  of Annex C should be interpreted broadly, making the provisions of Annex C 
                                                
1155 Appellate Body Report, Australia – Apples , para. 434. See also Panel Reports, EC  – Approval and 
Marketing of Biotech Products , para. 7.1569; US – Poultry (China) , paras. 7.393 –7.395; US – Animals , 
para. 7.62 and Russia – Pigs (EU)  para. 7.504.   
1156 Panel R eports, US – Poultry (China) , para. 7.372; Russia – Pigs (EU) , para. 7.514 and US – Animals , 
para. 7.68. 
1157 Panel Report, US – Poultry (China) , para. 7.363.  
1158 Appellate Body Report, Australia – Apples , para. 438.  
1159 Panel Report, US – Animals , paras. 7.70-7.71.  WT/DS495/R  
 
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  applicable to a wide range of measures.1160 According to Japan, such a reading of th e term "any 
procedure" is warranted by the use of the words "including" and "include" in Article 8 and footnote 
7 to Annex C, respectively.1161 Japan further points out that nothing in the language of Article 8 or 
Annex C suggests that any of these provisions  requires procedures to meet a minimum level of 
specificity or formality .1162 Korea, for its part, focuses its argumentation not on the word "any", but 
rather on the definition of procedure. Korea argues that the panel report in US – Animals  has 
clarified tha t a procedure must be a measure that "prescribe[s] a specific course of action" or "a 
step-by-step process of application, provision of scientific information, evaluation of that 
information, on -site verifications, and public participation."1163 
7.368.   The Panel  notes that both Article 8 and Annex C are entitled "Control, Inspection and  
Approval Procedures." The panel in US – Animals  found that "the title, while illustrative, does not 
confine the scope of the measures covered" by Annex C.1164 In other words,  the types of 
procedures governed by Annex C are not limited to "control, inspect ion and approval procedures" 
described in the title. The chapeau  of Annex C(1) refers to any procedure . The dictionary defines a 
procedure as "[t]he fact or manner of proceedi ng with any action, or in any circumstance or 
situation; the performance of parti cular actions" and "the established or prescribed way of doing 
something." The term "any" has been understood to "modify the word 'procedure '" in that "Annex 
C(1) does not spe cify, nor exclude, any type of 'procedures ' from its application ".1165 Our 
understan ding of Annex C(1) is not limited to the title or the chapeau , but also includes footnote 7 
to Annex C, which enumerate examples of procedures while using the phrase "include inter 
alia".1166  
7.369.   All these elements suggest a broad range of measures are covered b y Article 8 and Annex 
C. Indeed, as indicated above, the Appellate Body in Australia – Apples  did not exclude that other 
types of procedures than control, inspection and appro val procedures could infringe the provisions 
of Annex C(1). Nevertheless, even if  the Panel  were to be led by a narrower approach, the Panel  
agree s with Japan that testing and certification requirements are explicitly listed in footnote 7 as 
examples of th e types of procedures subject to the obligations in Annex C.1167 
7.370.   The Panel  further n otes that for procedures to be subject to Annex C they must check and 
ensure the fulfilment of a  broad range of  Member 's SPS measures , covered by  Annex A(1).1168 The 
types of pro cedures required to check and ensure the fulfilment of a particular SPS measure m ay 
vary from one measure to another. In one instance testing for a contaminant within a tolerance 
level may be sufficient, while in others a physical examination of an animal may be required, while 
still others may require proof that certain mitigating pro tocols such as freezing, heating, or 
maturation had been undertaken. If the Panel  were to define procedures so narrowly as to prevent 
certain measures used to implement substa ntive SPS requirements from being subject to Annex C, 
it would frustrate the purp ose of the SPS Agreement.  
7.371.   None of the elements of interpretation supports Korea 's position that procedures within the 
meaning of Article 8 and Annex C have to prescribe a "sp ecific" course of action. Both the  
language and the context of these  provision s instructs  a broader understanding of the term 
"procedure" as performance of an action or a course of actions, which do not have to be specific or 
dictate a particular result. Such a broad understanding of these provisions is further reflected in 
their objec t and pu rpose, which is to ensure that Members , operate  their control, inspection and 
approval procedures in a manner consistent with the basic obligations of the SPS Agreement. 
                                                
1160 Japan's second written submission, para. 393.  
1161 Japan's second written submission, para. 393.  
1162 Japan's second written subm ission, para. 394.  
1163 Korea's first written submission, para. 305; second written submission, para. 368 (citing Panel 
Report, US – Animals , para. 7.63).  
1164 Panel Report, US – Animals , para. 7.66.  
1165 Panel Reports, US – Animals , para. 7.67.  
1166 Panel Reports, US – Animals , para. 7.68; and Russia – Pigs (EU) , para. 7.514.  
1167 Japan's second written submission, para. 402.  
1168 We note t hat the main paragraph of Annex A(1) states that SPS measures include all relevant laws, 
decrees, regulations, requirements and procedur es. The paragraph provides examples of SPS measures such 
as end product criteria; processes and production methods; testing, inspection, certification and approval 
procedures ; quarantine treatments including relevant requirements associated with the transp ort of animals or 
plants, or with the materials necessary for their survival during transport; provisions on relevant st atistical 
methods, sampling procedures and methods of risk assessment; and packaging and labelling requirements 
directly related to food  safety.   WT/DS495/R  
 
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  Moreover, and contrary to Korea 's contention, the panel in US – Animals  did no t rule t hat for any 
measure to be considered a procedure within the meaning of Article 8 and Annex C, it must 
prescribe a specific course of action. It simply concluded that the measures at issue in that dispute 
did so.1169 Thus, the Panel  finds Korea 's relia nce on t he panel report in US – Animals  to be 
inapposite.  The Panel  agree s with Japan that the scope of Annex C is broad and that the additional 
testing requirements are not a priori  excluded from the obligations therein.  
7.9.1.2   To check and ensure the fulfilmen t of san itary or phytosanitary measures  
7.372.   Korea makes an additional challenge to the applicability of Article 8 and Annex C  to its 
measures . Namely , Kore a argues  that the additional testing requirements "are SPS measures in 
their own right" and "they do not specify procedures that ensure fulfilment of SPS measures".1170  
7.373.   In that regard, Japan contends that the additional testing requirements were adopted with 
the "ostensible goal of checking fulfilment of SPS measures setting out [Korea 's] tolerance limit for 
the presen ce of radionuclides in food."1171 Korea relies on prior panel and Appellate Body reports 
to argue that control, inspection and approval procedures h ave to be distinct from the 
SPS measures that they seek to implement.1172 Korea argues that the Appellate Body's finding in 
Australia – Apples  that SPS measures must " exist prior to the operation, undertaking, or 
completion of the relevant procedures, as the latter seek and ensure fulfilment with the 
former"1173, supports a conclusion that Japan is required to identify the distinct SPS requirements 
that the additional testing requirements would implement.  
7.374.   The Appellate Body held in Australia – Apples  that Annex C(1) requires a link between the 
relevant "procedures" and "sanitary or phytosanitary measures".1174 Previous p anels understood 
this requirement to mean that to fall within the scope of Article 8 and Annex C, a procedure must 
be designed to make certain that a measure applied to achieve one of the objectives in Annex A(1) 
is fully implemented.1175 
7.375.   While the Panel  agrees with prior panels and the Appellate Body that a link between the 
relevant procedure and an SPS measure must exist, the Panel  does not find support for Korea 's 
contention that  a procedure has to check and ensure the fulfilment of a separate and dist inct 
substantive SPS measure  either in the wording of Annex C or the context of that provision . Korea 
attempts to insert the word "other" into the Appellate Body 's reasoning when it is not there.  
Korea 's argument implies a temporal requirement that first a n SPS  measure is adopted and then 
subsequently a separate and distinct procedure is put in place to check and ensure its fulfilment.  
Indeed, Korea 's interpretation could pose practical difficulties in assessing measures which, as i s 
the case at hand, combi ne bo th substantive and procedural requirements in a single instrument.  
7.376.   The Panel  sees nothing in prior panel and Appellate Body reports that would preclude 
combining substantive SPS requirements or objectives and procedures in a single measure. In 
particu lar, such a requirement for an "other" SPS measure should not be read into the Appella te 
Body's finding that SPS "measures exist prior to operation, undertaking, or completion of the 
relevant procedures".1176 The use of the terms "undertaken and completed " under Annex  C(1)(a) 
seems to us to refer to the application of a particular procedure to a particular situation (e.g. 
testing a particular consignment, reviewing a particular application to place a category of products 
on the market1177, a request for designati on of a r egion as pest -or-disease free1178). At the same 
time, the Panel  notes that Article 8 refers generally to the operation of procedures "including 
national systems for approving the use of additives or for establishing tolerances for contaminants 
in foo ds, bever ages or feedstuffs …". From this language and the Appellate Body 's broad reading of 
                                                
1169 Panel Report, US – Animals , para. 7.63.  
1170 Korea's first written submission, paras. 310 -314; response to Panel question No.  92(b).  
1171 Japan's second written submission, para. 401.  
1172 Korea's second written submission, para. 369. (quoting Appellate Body Report, Australia – Apples , 
para. 436; and Panel Report, Russia – Pigs (EU) , para. 7.519).  
1173 Korea's second wr itten submission, para. 369 (quoting Appellate Body Report, Australia – Apples , 
para. 436). (emphasis original)  
1174 Appellate Body Report, Australia – Apples , para. 435.  
1175 Panel Reports, US – Animals , para. 7.73; and Russia – Pigs (EU) , para. 7.519.  
1176 Appell ate Body Report, Australia – Apples , para. 436.  
1177 Panel Report s, EC – Approval and Marketing of Biotech Products , paras. 7.423 -7.429.  
1178 Panel  Report, US – Animals , paras. 7.69 -7.71.  WT/DS495/R  
 
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  Article 8 and Annex C the Panel  understand s that Members may challenge the application of a 
procedure in a particular situation as well as a regulatory regime that  sets for th that certain 
procedures are required. Korea 's argument seeks to blur the line between the two situations and 
imply that only the former is covered.  
7.377.   An SPS measure (such as a tolerance level) is certainly necessary before a Member can 
undertake  and comp lete a procedure to check and ensure its fulfilment. However, when the 
measure being challenged is one that sets forth the manner in which control, inspection and 
approval procedures should be conducted, the Panel  does not see why those rules woul d have to  
be elaborated in distinct measure s. To adopt such an interpretation would allow Members to easily 
evade review of their procedural requirements under Article 8 and Annex C simply by stipulating 
control, inspection and approval procedures together  with sub stantive SPS requirements in the 
same instrument.  
7.378.   The Panel  conclude s that for a procedure to fall within the scope of Article 8 and Annex C, 
there has to be a link between the procedure and an SPS measure that the Member seeks to check 
and ensure  the fulf ilment of. The Panel finds that a mea sure adopting a substantive 
SPS requirement does not necessarily have to be distinct and separate from the one adopting the 
procedures. Therefore, the Panel  will not dismiss Japan 's claim under Article 8 and An nex C on the 
basis that Japan has allegedly failed to indicate such distinct substantive SPS requirements.   
7.9.1.3   Whether Korea 's additional testing requirements are procedures to check and 
ensure the fulfilment of SPS measures within the meaning of Article 8 an d Annex C  
7.379.   The Panel notes that both the 2011 and  the 2013 additional testing requirements set forth 
a number of steps for importing food products from Japan to Korea. In particular, an import 
declaration has to be accompanied by an analytical report contai ning the results of caesium and 
iodine testing.1179 The measures stipulate that if trace amounts of caesium or iodine have been 
detected, "a relevant importer will be required to submit additional test certificates on other 
radionuclides", such as isotopes of  strontium, plutonium and the other additional radionuclides.1180 
The 2011 measure specifies that the analytical report should include "the information on analyzed 
products, name of laboratory, analysis date, analyzed items, detection level, methods of analys is, 
and signature and stamp of approver."1181 While a similar list of items to be provided together with 
a test certificate is missing from the documents announcing the 2013 measure, the Panel  notes 
that the Korean authorities in fact require such information  from importers.1182 
7.380.   Further, these measures do not function in a vacuum, but rather operate in conjunction 
with certain specific rules regarding testing and sampling contained in a number of Korean 
domestic legal instruments.1183 In particular, Korea clarifies that "[t]he 'selection of samples ' in 
Korea is governed by Article 8 of the Korea Food Code."1184 Likewise, the KFDA 2011 Instruction 
on new certification requirements for Japanese food  explains with regard to the application of the 
2011 additional testing re quirements that "[i]n the event where the importer requests for a 
specimen needed in laboratory analysis, inspectors from KFDA will collect the specimen using 
collection methods prescribed under the Food Code."1185 Because such procedures form part of the 
additional testing, the Panel  finds it appropriate to consider all these requirements together for the 
                                                
1179 Korea's second written submission, para. 84.  
1180 MFDS notice for 2013 blanket import ban and additional testing requirements , (Exhibit JPN -75.b), 
p.1. Similar language can be found in the KFDA 2011 Instruction on ne w certification requirements for 
Japanese food (Exhibit KOR -40.b), pp. 1 and 6.  
1181 KFDA 2011 Instruction on new certification requirements for Japanese food (Exhibit KOR -40.b), p. 6.  
1182 The two individual requests received by importers of Japanese fishery pr oducts state that a test 
certificate should contain information, among others, about the tested product and its  quantity, date of the 
test, the employed testing method, as well as the organization conducting the test. Korea's Ministry of Food 
and Drug Safe ty, "Notification on complementary information in response to the detection of radioactivity in 
imported food, dried bonito", (Exhibit JPN -87.b), p. 1; and Korea's Ministry of Food and Drug Safety, 
"Notification on complementary information in response to the detection of radioactivity in imported food, 
mako shark" , (Exhibit  JPN-86.b), p. 1. In addition, we note that Korea's SPS Enquiry Point referred to the 
"current way of certification", in its response to Japan's request dated 24 June 2014. Response by K orea's 
SPS Enquiry Point , (Exhibit JPN -30). 
1183 Korea's second written su bmission, para. 84.  
1184 Korea's response to Panel question No. 102.  
1185 KFDA 2011 Instruction on new certification requirements for Japanese food, (Exhibit KOR -40.b), 
p. 7. (emphasis omitte d)  WT/DS495/R  
 
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  purposes of our assessment under Article 8 and Annex C.1186 Although Japan is not specifically 
challenging any of these instruments, its complaint relates to t he additional testing as part of 
Korea 's overall regime for addressing radioactive contamination in food.  
7.381.   In the Panel 's view, the additional testing requirements, read together with Article 8 of the 
Korea Food Code, prescribe a way or manner, in which Kor ea requires testing of Japanese 
products for the presence of certain specific radionuclides and to check whether they exceed 
Korea 's tolerance levels. In particular, they prescribe the manner in which analytical reports should 
be completed, how samples and  specimens should be collected and treated, the radionuclides to 
be tested for, and the tolerance levels. As such, they fit squarely within the type of procedures 
mentioned in footnote 7 to Annex C. We therefore consider that the 2011 and 2013 additional 
testing requirements constitute procedures within the meaning of Article 8 and Annex C.  
7.382.   With regard to the question of whether the additional testing requirements check and 
ensure the fulfilment of Korea 's SPS measures, the Panel  recall s that Korea "imposed  [these] 
measures shortly after the FDNPP accident in order to protect its citizens from radionuclide 
contamination in imported Japanese food products".1187 The Panel  thus understand s the aim of 
Korea 's measures as ensuring that the concentration  levels of ra dionuclides in food imported from 
Japan do not exceed Korea 's tolerance levels and, as a result, to ensure that the exposure of 
Korean consumers to radionuclides in food products as low as reasonably achievable  below 1 
mSv/year for all man-made radionucli de.1188 To ensure that food imports from Japan are compliant 
with these limits, an importer has to submit together with an import declaration an analytical 
report stating, among other things, the measured radionuclide content, the name of the issuin g 
agency, information on the tested products, date of testing and methods of analysis.1189 As 
explained by Korea, shipments exceeding the Codex standard for the additional radionuclides are 
refused entry to Korea.1190  
7.383.   In the Panel 's view, submitting test result s together  with information relating to different 
aspects of the tests allows the authorities to check whether a product falls within the radionuclide 
concentration levels that Korea has set. These concentration levels constitute Korea 's substantive 
SPS me asures ful filling the objective set forth in Annex A(1)(b).1191 Therefore, the additional 
testing requirements check and ensure the fulfilment of Korea 's sanitary measure.   
7.384.   In light of the above, the Panel  conclude s that both the 2011 and the 2013 additional 
testing re quirements constitute procedures to check and ensure the fulfilment of Korea 's 
SPS measures within the meaning of Article 8 and Annex C. Therefore, the Panel  proceed s to 
address Japan 's substantive claims under the various subparagraphs of Annex C. 
7.9.2   Underta ken and completed in no less favourable manner  
7.385.   The second clause of Annex C(1)(a) requires that control, inspection and approval 
procedures are undertaken and completed in a no less favourable manner for imported products 
than for like domestic p roducts. T he panel in Russia – Pigs (EU)  considered the assessment under 
Annex C(1)(a) to entail a two -step analysis: (i) whether domestic and imported products are 
"like"; and (ii) whether the latter are treated in a less favourable manner in the undertak ing and 
                                                
1186 Panel Report, Japan – Apples , para. 8.17.  
1187 Korea's first w ritten submission, para. 38.  
1188 Korea's second written submission, para. 331; KFDA 2011 Instruction on new certification 
requirements for Japanese food, (Exhibit KOR -40.b), p. 6; MFDS notice fo r 2013 blanket import ban and 
additional testing requirements, (Exhibit  JPN-75.b), p. 1 . 
1189 Korea's response to Panel question No. 21. KFDA 2011 Instruction on new certification requirements 
for Japanese food, (Exhibit KOR -40.b), p.5.  
1190 Korea's response to Panel question No. 18(f).  
1191 See section 7.4 above.   WT/DS495/R  
 
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  completion of the challenged procedures.1192 Japan and Korea agree that the Panel should proceed 
with its assessment of Japan 's claims on the basis of the above -mentioned two -step test.1193 
7.386.   Thus, the Panel  will start its assessment by examining whether i mported Ja panese 
products and domestic Korean products are like. Should this be the case, the Panel  will move on to 
analyse whether the additional testing requirements are undertaken and completed in a less 
favourable manner for Japanese products than for Korean pro ducts.  
7.387.   While the parties agree on the general framework that should guide the Panel 's 
assessment, they largely differ in their interpretation of each of the two elements of the test. The 
Panel will address these arguments in the following section s on the a nalysis of "likeness" and 
discriminatory treatment.   
7.9.2.1   Likeness analysis  
7.388.   Japan argues that the assessment of likeness under Annex C(1)(a) has to reflect the 
specific context of the SPS Agreement and, in particular, Article 2.3.1194 Japan attempts to 
assimilate the concept of likeness with that of identical or similar conditions in Article 2.3. In 
Japan 's view, all products giving rise to SPS risks addressed by the challenged measure should be 
considered like for the purposes of Anne x C(1)(a), which shares a "par allel function" with the 
likeness test under Article III of the GATT 1994 .1195 
7.389.   Korea argues the Panel should apply the traditional four criteria likeness analysis typically 
done under Article III of the GATT 1994. In doing so, Ko rea argues that the Panel shou ld consider 
the level of risk posed by the products in making its determination.1196 Korea relies in that regard 
on the report in EC – Asbestos , in which the Appellate Body considered the carcinogenic properties 
of asbestos to be  relevant for the purposes of the likeness analysis.1197 Korea further supports its 
argument with a statement by the Appellate Body in the context of the TBT Agreement that 
"regulatory concerns and considerations may play a role in applying certain of the 'likeness ' criteria 
(that is, phy sical characteristics and consumer preferences) and, thus, in the determination of 
likeness under Article III:4 of the GATT 1994."1198 Korea concludes on that basis that "health risks 
are relevant to the determination of the comp etitive relationship between p roducts".1199 
7.390.   The Appellate Body has explained that in interpreting the term "like products", panels 
should start with the text of the provision in light of the context provided by the provision itself, 
the other provisions of th at agreement, and by the agree ment as a whole.1200 The Panel  notes that 
the language used in Annex C(1)(a) is akin to that used in Article III:4 of the GATT 1994. In 
particular, Annex C(1)(a) and Article III:4 of the GATT 1994 require a comparison of treatmen t 
afforded to "imported produc ts" on the one hand and either "like domestic products" or "like 
products of national origin" on the other hand. The Panel  also note s that both provisions also refer 
to the concept of imported products being treated in a "less  favourable" manner than domes tic 
ones under measures adopted by an importing Member. The Appellate Body has explained that 
                                                
1192 Panel Report, Russia – Pigs (EU) , para. 7.539, relying on the panel in EC – Approval and Marketing 
of Biotech Products finding that due to the similarities be tween Ar ticle III:4 and Annex C(1)(a) that it is 
appropriate to rely on the Appellate Body's interpretation of the phrase "treatment no less favourable" as it 
appears in Article III:4 in the context of Annex C(1)(a). Panel Report s, EC – Approval and Market ing of B iotech 
Products , paras. 7.2401 -7.2407.  
1193 Japan's second written submission, paras. 411 and 416; Korea's second written submission, 
para. 375. 
1194 Japan's second written submission, para. 414.  
1195 Japan's second written submission, paras. 414 -416. 
1196 Korea's first written submission, paras. 327 -330. 
1197 Korea's first written submission, para. 327 (quoting Appellate Body Report, EC – Asbestos , 
para. 145).  
1198 Korea's first written submission, para. 328 (quoting Appellate Body Report, US – Clove Cigarettes , 
para. 117).  
1199 Korea's first written submission, para. 329; second written submission, para. 385.  
1200 Appellate Body Report, US – Clove Cigarettes , para. 108.   WT/DS495/R  
 
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  this concept informs the determination of likeness by suggesting that likeness is about the nature 
and extent of a competitive relat ionship between and among prod ucts.1201  
7.391.   Three other provisions in Annex C – subparagraphs (d), (f), and (g) – also mention less 
favourable treatment or a requirement for equal treatment of imported and domestic products. All 
three focus on elements that wou ld be relevant for a competiti ve relationship. First, subparagraph 
(d) mentions the protection of the confidential information of importers to protect "legitimate 
commercial interests". Subparagraph (f) refers to fees imposed on procedures, which can have an 
effect on the ultimate sale  price, being equitable between imported and domestic products. Finally, 
subparagraph (g) refers to the same criteria  for the selection of samples and siting of facilities  
being applied to domestic and imported products "so as  to minimize inconvenience". The Panel  
notes that the Preamble to the SPS Agreement strikes a balance between Members ' rights to adopt 
or enforce measures necessary to protect human, animal or plant life or health with the 
requirement that the measures not  be applied in a manner which would constitute a means of 
arbitrary or unjustifiable discrimination or a disguised restriction on international trade. The 
obligation of non -discrimination is also contained  in the basic obligation in Article 2.3. This balan ce 
is similar to that expresse d by the national treatment rule in Article III:4 as qualified by the 
exceptions in Article XX of the GATT 1994.  
7.392.   The Panel  is not persuaded by Japan 's argument that Article 2.3 should inform the likeness 
test under Annex C(1) (a). Although Article 2.3 prov ides context for interpretation of Annex 
C(1)(a)1202, similar conditions is a broad concept that can encompass specific products, specific 
risks, or specific territorial differences (such as the presence of a pest or disease). Mo reover, Japan 
asks this Panel to do under the SPS Agreement, what the Appellate Body concluded in the context 
of the TBT Agreement was inappropriate – namely determine likeness based on the objective of 
the challenged measures rather than on the competitiv e relationship between the pro ducts.1203 
Because of the textual and conceptual similarities between Article 2.1 of the TBT Agreement and 
Annex C(1)(a) of the SPS Agreement, which both address discrimination arising from application of 
regulatory measures, the Panel  finds the Appellate Bod y's guidance relevant. Although a measure 's 
objective might be more easily discerned for an SPS measure (with reference to the 
subparagraphs of Annex A(1))  than for a technical regulation, the admonition still holds. This 
guidance might even be more import ant in a situation where a measure could address the same 
sanitary or phytosanitary risk in products that would never be in a competitive relationship. For 
example, a mushroom and a fish could both be contaminated by the same subst ance, and hence 
pose a si milar or identical health risk. However, the Panel  is not convinced that this would be 
sufficient to conclude that mushrooms and fish are like products.  
7.393.   Consistent with the Appellate Body 's reasoning in US – Clove Cigarettes and in  light of our 
evaluation of Annex C, the Panel  finds nothing in the context or object and purpose of Annex C or 
the SPS Agreement that suggests that the concept of like products cannot be approached from a 
competition -oriented perspective.1204 Therefore, the Panel  conclude s that the same likeness 
criteria under Article III:4 of the GATT 1994 are appropriate for an analysis under Annex C(1)(a). 
In this regard, the Panel  recall s that panels and the Appellate Body have consistently resorted to 
four criteria to de termine likeness: the phy sical characteristics of the products, the end -uses of the 
products, consumer tastes and habits, and tariff classification.1205  
7.394.   Japan argues that if the Panel were to use the Article III:4 of the GATT 1994 concept of 
likeness, that i nstead of using the four criteria, the more appropriate approach would be to 
presume  likeness because the challenged measures distinguish between products solely based on 
origin.1206 Japan notes that in a number of disputes, panels have concluded that if a me asure 
explicitly distingu ishes between products solely on the basis of origin, the relevant products can be 
                                                
1201 Appellate Body Report, US – Clove Cigarettes , para. 111. See also Appellate Body Report, EC – 
Asbestos, para. 99.  
1202 Panel Report, EC — Approval and Marketing of Biotech Products , para. 7.2407.  
1203 Appellate Body Report, US – Clove Cigarettes , para. 112.  
1204 Appellate Body Report, US – Clove Cigarettes, paras. 108 -109. 
1205 Panel Report, US – Poultry (China) , para. 7.425; Appellate Body Reports, Japan – Alcoholic 
Beverages , p. 20; EC – Asbestos , para. 101.  
1206 Japan's second written submission, paras. 412 -413.  WT/DS495/R  
 
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  presumed to be like.1207 The Appellate Body has endorsed this appr oach in the context of 
Articles  II:1 and XVII:1 of the GATS and indicated that it wou ld be equally relevant fo r obligations 
related to goods.1208 In order to rely on this presumption as a proxy for likeness a complainant 
must make a prima facie case that a measure draws a distinction based solely on origin.1209 The 
Appellate Body further explain ed that this presumption is rebuttable.1210 Korea does not oppose 
using the presumption in the context of Annex C(1)(a); however, it questions whether Japan has 
met its burden  of proof  with respect to the measures at issue in this dispute.1211 
7.395.   In light of the fo regoing, in determining w hether Japan has established that Japanese and 
Korean products are like within the meaning of Annex C(1)(a), the Panel will first analyse whether 
Japan has demonstrated that the presumption of likeness based solely on origin distin ction applies. 
If Japan h as not proved likeness based on the presumption, the Panel will turn to Japan 's 
arguments with regard to the like product analysis according to the traditional four criteria.  
7.9.2.1.1   Whether the measures distinguish solely based on origin  
7.396.   Japan contends that Japa nese and Korean products should be presumed to be like because 
Korea 's pre -market additional testing requirements "apply exclusively to Japanese products" and 
thus "involve de jure  discrimination on the basis of origin."1212 Japan poi nts to Korea 's own 
descri ption of its measures provided in Annex B in response to the Panel 's questions.1213 According 
to Korea, Japan fails to provide sufficient argumentation and evidence to show that the pre -market 
additional testing requirements use origi n as the sole criterion t o distinguish between Japanese 
and Korean products.1214 Moreover, Korea maintains that pre -market additional testing 
requirements apply both to domestic and imported products alike and disputes that the measures 
draw any distinction b etween Japanese and Korea n products.1215 In the alternative, Korea argues 
that if a distinction exists , then  it is related to a different risk profile of Japanese products rather 
than to their origin. In Korea 's view, it has, thus, successfully rebutted the p resumption that 
Japanese and Korean products are like.1216 
7.397.   In the Panel 's view, the arguments Japan advances do not support the contention that 
Korea 's measures distinguish between products solely  on the basis of origin. Japan 's entire 
argumentation as to why domestic and imported pr oducts should be presumed to be like rests 
entirely on the alleged de jure  discrimination resulting from applying pre -market additional testing 
only to Japanese products.1217 Japan refers in that regard  to its arguments on no less favourable 
treatment.1218 The P anel notes that the challenged measures only apply to Japanese products. 
Therefore, origin is certainly a criterion that Korea uses to distinguish between domestic and 
Japanese products. A panel must  not assume, however, that simply because origin is a criterion 
for a distinction between products, the measures satisfy the test to apply the presumption.1219 The 
Panel must address the parties ' arguments with respect to whether the distinction is based on 
grounds in addition to origin.1220 
                                                
1207 Panel Report, Indonesia – Autos , para. 14.113; Panel Report, Argentina – Hides and Leather , 
paras.  11.168  -11.170; Panel Reports, Canada – Autos , para. 10.74; India – Autos , paras. 7.174 -7.176; China 
– Publications and Audiovisual Products , paras. 7.1496 -7.1498.  
1208 Appellate Body Report, Argentina – Financial Services , para. 6.38. In its analysis, the Appellat e Body 
drew a parallel between the MFN and national treatment obligations under the GATS and the GATT 1994, 
finding that "the analysis of 'likeness' serves the same purpose in the context of both trade in goods and trade 
in services, namely, to determine w hether the products or services and service suppliers, respectively, are in a 
competitive relationship with each other." Appellate Body Report,  Argentina – Financial Services , para. 6.31.  
1209 Appellate Body Report, Argentina – Financial  Services , para. 6.42;  see also Panel Report, China – 
Publications and Audiovisual Products , paras. 7.1496 and 7.1498.  
1210 Appellate Body Report, Argentina – Financial Services , para. 6.45.  
1211 Korea's second written submission, paras. 383 -385. 
1212 Japan's secon d written submission, paras. 413 and 423.  
1213 Korea's response to Panel question No. 5, Annex B.  
1214 Korea's second written submission, para. 384.  
1215 Korea's second written submission, paras. 362 -363. 
1216 Korea's second written submission, para. 385.  
1217 Japan's se cond written submissio n, para. 423.  
1218 Japan's second written submission, para. 413.  
1219 Appellate Body Report, Argentina – Financial Services,  para. 6.60.  
1220 Appellate Body Report, Argentina – Financial Services, para. 6.61.   WT/DS495/R  
 
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  7.398.   With respect to the presum ption of likeness, Japan does not address the text of the 
measures  or other documents on the record , which refer to the Fukushima accident and health -
related concerns. For instance, the Response and Management Measures Regarding the Japanese 
Nuclear Crisis  is entitled "Status of KFDA 's Response and Management Measures Regarding the 
Japanese Nuclear Crisis" and reads that "[r]egarding the Japanese nuclear crisis, the Korea Food & 
Drug Administration ( 'KFDA ') (Commissioner: Yeon -hong Rho) stated that it would  take additional 
measures to step up control in light of the measures taken by other countries and the recent level -
up in nuclear incident rating."1221 With regard to the 2013 measure, PMO Blanket Impor t Ban and 
Additional Testing Requirements Press Release , refers to the risk of potential increased food 
contamination resulting from leaks of contaminated water from the FDNPP site as rationale for 
extending the additional testing requirements to further g roups of products.1222 Likewise, the 
MFDS notice for 2013 bl anket import ban and additional testing requirements  notifies the MFDS 
administration that the 2013 measure was adopted following a meeting and consultations held "in 
respect of the Fukushima nuclear  accident".1223 
7.399.   Japan does not deny that concerns other than  origin underpin Korea 's measures. Indeed, 
Japan acknowledges that health concerns are a factor in Korea 's adoption of the measures, when it 
states that "with reference to the SPS risks addressed by Korea 's regulatory framework, Japanese 
products and non -Japanese products present similar SPS risks."1224 Rather, Japan argues that such 
concerns are not based on science, given the allegedly similar risk profile of Japanese and Korean 
products containing les s than 100 Bq/kg of caesium.1225 However, the question of wh ether Korea 's 
measure is based on science is more properly addressed under Articles such as 2.2, 5.1, 2.3 and 
5.6 and not in the context of a presumption of likeness. In our view, even if, as the Pan el has  
found, Korea 's measures are applied more than to t he extent necessary, the distinction of applying 
them only to Japan cannot be separated from the public health concern and the fact that  it was  
Japan that experienced the FDNPP accident.  The Panel recalls in that regard that the hypothetical 
likeness test is an analytical tool, which allows considering products to be like, without it being 
necessary to demonstrate likeness on the basis of the traditional likeness criteria. Inapplicability  of 
the presumption in a particular case does not mean in itself that products are not like, because 
they are not in a competitive relationship. It merely indicates that the complainant has failed to 
establish a prima facie  case that origin is the sole cri terion for distinguishing between products or 
that the respondent has successfully rebutted such a presumption. As confirmed by the Appellate 
Body, even if the presumption of likeness does not apply, the complainant may still demonstrate 
that the products are like based on the traditional likeness test.1226 
7.400.   The Panel  further no tes that Korea 's SPS regime takes into account health risks posed by 
contaminated products from origins other than Japan. Korea confirms that it has applied different 
frequencies of insp ection at the border to different products from different origins.1227 In particular, 
Korea closely monitors imports of food products from Ukraine, Belarus and other neighbouring 
countries affected by the fallout following the Chernobyl accident.1228 Japan appea rs to 
acknowledge Korea 's assertion regarding "different frequency [of  caesium testing] depending on 
the origin of food products."1229 Japan also  provides a specific example of "six fishery species 
caught in the Pacific region and imported from any source, fo r which Korea conducts pre -market 
caesium tests twice a week."1230 Theref ore, in the Panel 's view, Korea has a varied regime that is 
not based only on origin, but takes into consideration the potential of contamination of food by 
radionuclides. As a result, t he Panel finds that Japan has failed to demonstrate that origin is the  
sole basis for a distinction of Japanese products and that imported and domestic products can be 
presumed to be like.  
                                                
1221 Response and Management Measures Regarding the Japanes e Nuclear Crisis, (Exhibits JPN -55.b 
(revised)), (Exhibit KOR -72 (revised)), p.1.  
1222 PMO Blanket Import Ban and Additional Testing Requirements Press Release, (Exhibit JPN -3.b), p.1.  
1223 MFDS notice for 2013 blanket im port ban and additional testing requireme nts, (Exhibit JPN -75.b), 
p.1. 
1224 Japan's second written submission, para. 434.  
1225 Japan's second written submission, para. 434.  
1226 Appellate Body report, Argentina – Financial Services , para. 6.43.  
1227 Korea's comments o n Japan's response to Panel question No. 135. 
1228 Korea's comments on Japan's response to Panel question No. 135.  
1229 Japan's first written submission, para. 127.  
1230 Japan's first written submission, para. 128.   WT/DS495/R  
 
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  7.401.   Even assuming that Japan has established a prima facie  case that th e pre -market 
additional testing requirements distinguish between domes tic and imported products exclusively on 
the basis of origin, Korea has, in the Panel 's view, succeeded in rebutting that presumption. Korea 
introduces a number of arguments to support i ts contention that the distinction drawn by the 
measures is not solely  based on origin. Korea explains that "the distinction between products are 
drawn as a result of the location of the FDNPP accident and the ongoing radioactive contamination 
stemming fro m the plant."1231 Korea also puts forward health risks arising from impor tation of food 
products contaminated by radioactive isotopes as the rationale behind the different treatment of 
products from certain origins.1232 The Panel  recall s that the documents annou ncing the 2011 and 
2013 additional testing requirements  refer to healt h risks related to the contamination of Japanese 
food by radionuclides as the rationale for adopting the measures. As such, they provide 
contemporaneous  corroboration for Korea 's content ion that public health concerns constituted one 
of the grounds for dra wing a distinction between domestic and imported products.  
7.402.   As noted above, Japan returns to its arguments under Article 2.3 that Japanese products 
have similar risk profiles to food from  other destinations including Korea.1233 However, in the 
Panel 's view, as sessing whether a presumption of likeness has been established does not imply an 
in-depth inquiry into the nature of the distinction, as long as the reasons given by the respondent 
to rebut it are genuine and corroborated by evidence.1234 Otherwise, this anal ytical tool would stop 
serving its purpose and would risk conflating the likeness analysis with the discrimination test. 
Therefore, the Panel accepts Korea 's explanation that origin was not the sole ground considered 
when the distincti on was drawn.1235 Theref ore, even if  Japan has established a prima facie  case 
that the presumption of likeness applies, the Panel  finds that Korea has succeeded in rebutting the 
presumption of likeness o f Korean and Japanese Products.  
7.403.   Because Japan has failed  to establish that im ported and domestic products can be 
presumed to be like, the Panel  will now turn to the question whether Japan has demonstrated their 
likeness  on the basis of the traditional four criteria elaborated by prior panels and the Appellate 
Body. 
7.9.2.1.2   A traditional li keness analysis  
7.404.   Japan argues that under a traditional likeness analysis  in line with the one established 
under Article III:4 of the GATT 1994, the Panel would need to determine on the basis of the four 
likeness criteria whether for eve ry product imported f rom Japan and covered by the challenged 
measures there is a like product from other origins.1236 We note that Japan 's claim covers all food 
products, but with r espect to the traditional likeness analysis, Japan 's argument is  essentially that: 
Evidently, Alask a pollock from all origins has the same physical properties and end 
uses; given that there are no differences between the Alaska pollock products with 
less than 100 Bq/kg of caesium, consumers have no rational basis to prefer Alaska 
pollock from one origin  over another; and all Alaska pollock products are subject to 
the same tariff classification.  Thus, there is, at a minimum, a prima facie  case that 
Alaska pollock from Japan is "like" Alaska Pollock from all other origins. The same 
analysis applies, in the  same way, with the same conclusion, in respect of all of the 
products subject to Japan 's claims regarding the import bans (28 species of fish) and 
additional testing (all food).1237 
7.405.   Korea, for its part, argues that the Panel should consi der the different hea lth risks posed 
by Japanese products versus Korean products in conducting the likeness analysis. Korea relies on 
                                                
1231 Korea's second written submission, para. 384.  
1232 Korea's second written submission, para. 385. 
1233 Japan's second written submission, para. 434.  
1234 The panel in China – Publications and Audiovisual Products  followed a similar approach, seeing "no 
reason to question China's explanations" regarding a distinct ion drawn between domestic and foreign 
publications on the basis of prohibited content. Panel Report, China – Publications and Audiovisual Products , 
para. 7.1496.  
1235 Our conclusion on Korea's reasons for drawing a distinction between Japanese and domestic 
products is separate from our findings wit h regard to whether Korea's measures are inconsistent with other 
provisions of the SPS Agreement.   
1236 Japan's second written submission, para. 426.  
1237 Japan's second written submission, para. 426.   WT/DS495/R  
 
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  the Appellate Body 's finding in EC – Asbestos , that "evidence relating to the health risks associated 
with a product may b e pertinent in an exa mination of 'likeness '", both because two products 
posing different health risks can be considered to have different physical characteristics and 
because it "will have an influence on consumers ' tastes and habits regarding that product ."1238 In 
other words, h ealth risks could be taken into account in the likeness analysis to the extent they 
affect one of the above -mentioned four criteria.1239  
7.406.   The Panel  notes in that regard that t he Appellate Body confirmed in EC – Asbestos and 
US – Clove Cig arettes that health i ssues may be relevant in applying the likeness criteria of 
physical characteristics and consumer tastes and habits. In US – Clove Cigarettes, the Appellate 
Body explained that a panel should determine the nature and extent of the compe titive 
relationship " in isolation from the measure at issue, to the extent that the latter informs the 
physical characteristics of the products and/or consumers ' preferences."1240 The Panel  understand s 
the Appellate Body to be cautioning panels not to reward the negative distorti ve effects of a 
measure on physical characteristics or consumer preferences by allowing a Member, through its 
measure, to render the products "unlike" and thus not subject to th e disciplines of non -
discrimination obligations. In the SPS context, applicatio n of certain SPS measures may actually 
mitigate existing risk and render the goods safe to be traded in international commerce. In the 
Panel 's view, the likeness analysis should  thus not be conducted in isolation from the mitigating 
effects of SPS measures .1241  
7.407.   It is well established that the burden of proof rests upon the party, whether complaining or 
defending, who asserts the affirmative of a particular claim or defence.1242 As Jap an is asserting 
that domestic and imported products are like, it is for Japan t o present arguments and adduce 
evidence supporting this assertion. Yet, other than a single paragraph in its second written 
submission , Japan does not elaborate why imported and  domestic  products should be considered 
to be like. Indeed, Japan refers to the  likeness of its products to those of "all other origins" rather 
than specifically to Korean products. Japan provides a succinct conclusion on likeness with respect 
to Alaska po llock, noting that regardless of origin all Alaska pollock containing less than  100 Bq/kg 
would share the same physical characteristics and end uses, they would normally be subject of the 
same consumer tastes and habits and they would be listed under the s ame item of a tariff 
classification.1243 In this example, Japan appears to overloo k the fact that Alaska pollock is among 
the banned fishery products , hence not covered by Korea 's additional testing requirements.  Japan 
mentions that the same analysis  should a pply with regard to all Japanese food products . Japan 
does not adduce any addit ional evidence that would be helpful in conducting the likeness analysis , 
whether relating to specific products or groups of such products . For example, Japan does not 
explain w hether Korea even produces all of the relevant products and, if it does not, wh ether any 
products it does produce are like the ones Japan seeks to export to Korea. Japan also does not 
refer to any trade data showing which of the products covered by its cla ims, or groups thereof, are 
in fact exported from Japan to Korea . 
7.408.   In the absenc e of further explanations from Japan, the Panel cannot assess whether 
imported and domestic products are like. As a result, the Panel  finds that Japan has failed to 
demonstrate that domestic and imported products are like for the purposes of assessment und er 
Annex C(1)(a).  
7.409.   As Japan has not demonstrated that Japanese and Korean food products can be regarded 
as like products, it has also failed to establish that Korea acted inconsi stently with Annex C(1)(a) 
by adopting or maintaining the 2011 and 2013 additio nal testing requirements.  
                                                
1238 Appellate Body Report, EC – Asbestos , paras. 113  and 145.  
1239 Appellate Body Report, EC – Asbestos , para. 113.  
1240 Appellate Body Report, US – Clove Cigarettes , para. 111.  
1241 For example if imported beef would have a lower sanitary quality t han domestic beef absent an 
SPS measure, but would have the same sanitary qual ity after the application of chilling and maturation the 
likeness comparison could be done on the basis of what the competitive relationship would be if the sanitary 
controls were applied.  
1242 Appellate Body Report, US – Wool Shirts and Blouses , p. 14.  
1243 Japan's second written submission, para. 426.   WT/DS495/R  
 
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  7.9.3   Information requirements  
7.410.   Annex C(1)(c) stipulates that information requirements introduced by Members as part of 
their SPS measures "are limited to wha t is necessary for appropriate control, inspection and 
approval procedures".  
7.411.   Japan submits that the challenged measures involve the obligation to provide information 
relating to the levels of certain man -made radionuclides in food imported from Japan that  are 
within the meaning of Annex C(1)(c). These levels are specified in an anal ytical report containing 
results of the additional testing, which importers of food from Japan have to submit together with 
an import declaration.1244 According to Japan, providing  information on the levels of additional 
radionuclides is not necessary, becaus e a less trade -restrictive alternative measure can achieve 
Korea 's ALOP.1245 In support of this claim, Japan refers back to its arguments made with regard to 
Article 5.6.1246 In a sim ilar vein, Japan argues that the additional information requested with 
regard t o Japanese products is not necessary, because third -country imports of products posing 
similar SPS risks are not subject to such requirements.1247  
7.412.   Korea, on the other hand, conten ds that Annex C(1)(c) does not apply to the additional 
testing requirements, as  these are SPS measures in their own right rather than procedures or 
information requirements.1248 According to Korea, Japan tries to artificially distinguish between the 
obligatio n to test food for the presence of additional radionuclides and an obligation t o provide 
results of such tests, which Korea views as a single measure.1249 Korea further argues that, in any 
event, Japan 's argument is ill -suited to support a claim under Annex C (1)(c). This is because Japan 
appears to be "challenging the necessity of subst antive measures for achieving Korea 's ALOP, and 
not any 'information requirements '".1250 
7.413.   The Panel  recall s that the panel in Australia – Salmon (Article 21.5 – Canada)  found that a 
challenge to substantive SPS measures in their own right, as opposed to inform ation requirements, 
falls outside the scope of Article C(1)(c).1251 The Panel  finds further support for that conclusion in 
the use of the conjunction "for", linking th e necessity of information requirements with "control, 
approval and inspection procedures".  
7.414.   The Panel understands from Japan 's submissions that it does not argue that knowing the 
levels of radionuclides in particular products would be unnecessary to check or ensure fulfilment 
with a substantive limit on radionuclide contamination in food products . More specifically, Japan 
does not explain which aspects of a test report or a certificate disclosing detection levels of 
radionuclides and other information ensur ing the reliability of tests results are excessive for the 
appropriate operation, undertakin g and completion of the additional testing. In the Panel 's view, 
Japan 's arguments are aimed at addressing the obligation in Article 5.6 not to apply measures that 
are more trade -restrictive than required to achieve the ALOP, instead of addressing the nece ssity 
of information requirements  for the operation of the procedure, w hich is the obligation in 
Annex  C(1)(c). As Japan 's arguments do not address the obligation i n subparagraph (c), they are 
insufficient to establish an inconsistency under that provision  and are more properly brought under 
Article 5.6.  
7.415.   In the light of the above, the Panel  finds that Japan has  failed to substantiate its claim 
under Annex C(1)(c) wit h respect to any of the challenged measures.   
7.9.4   Requirements for control, inspection and appro val of individual specimens  
7.416.   Annex C(1)(e) limits requirements for control, inspection and approval of individual 
specimens to what is reasonable and necessary. As t he meaning of the terms in the provision has 
                                                
1244 Japan's second written submission, para. 441; response to Panel question No. 97.  
1245 Japan's second written submission, para. 442; response to Panel  question No. 98.  
1246 Japan's second written submission, para. 442;  response to Panel question No. 98.  
1247 Japan's second written submission, para. 443.  
1248 Korea's second written submission, para. 388.  
1249 Korea's second written submission, para. 389.  
1250 Korea's s econd written submission, para. 391.  
1251 Panel Report, Australia – Salmon (Article 21.5 – Canada) , para. 7.156.   WT/DS495/R  
 
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  not yet been expressly dealt with by prior pane ls or the Appellate Body1252, the Panel  will begin its 
analysis by determining the ordinary meaning to be given to the provision in its context and in the 
light of its  object and purpose.  
7.417.   The parties offer divergent views over the interpretation of Annex C(1) (e). Japan submits 
that the term "necessary" should be read in light of Article 5.6 and Annex C(1)(c), requiring the 
complainant to show that a significantly less t rade-restrictive alternative measure would achieve 
the responding Member 's ALOP.1253 Japan refe rs in that regard to arguments and evidence it 
provides to support its claim under Article 5.6.1254 As regards the requirement of reasonableness, 
Japan refers to the d ictionary definition of that term, arguing that such a requirement is "not 
irrational, absur d or ridiculous ', and that 'is appropriate or suitable to the circumstances or 
purpose '."1255 Korea, on the other hand, relies on its understanding of the term "indivi dual" to 
argue that subparagraph (e) does not cover procedures mandating sampling of product s, such as 
the additional testing. According to Korea, "paragraph 1(c) refers to measures that require that 
each individual product – i.e., 'individual specimens ' – be subject to control, inspection and 
approval."1256 Korea maintains that because its measures  call for testing of randomly selected 
samples, they fall outside the ambit of Annex C(1)(e).  
7.418.   Looking at the language of subparagraph (e), the Panel  notes that the term "specimen" is 
commonly understood as "[a]n example, instance, or illustration of somet hing" and as "[a] part or 
piece of something taken as representative of the whole".1257 The dictionary defines "individual" as 
"[o]ne in substance or essence [and] forming an indivisible entity".1258 Although the term 
"requirement" as used in Annex C(1)(e) has n ot been previously interpreted, prior panels 
understood the word "requirement" in Annex A(1) to mean "something called for or demanded; a 
condition which m ust be complied with".1259 In view of the textual similarities, the Panel  finds this 
definition of "requ irement" helpful in discerning the meaning of Annex C(1)(e).  
7.419.   These terms should be read in the broader context of subparagraph (e), which, being part 
of Annex C(1), governs procedures to check and ensure the fulfilment of SPS measures. In 
particular, the Panel  notes that the language of subparagraph (e) refers to the same "control, 
inspection and approval procedures" that are mentioned in the title of Artic le 8 and Annex C. The 
Panel  further note s that subparagraph (e) strikes a balance between the Members ' prerogatives to 
verify that imported products comply with their SPS requirements and facilitating international 
trade in goods. Accordingly, Annex C(1)(e ) aims at preventing Members from using control, 
inspection and approval procedures with regard to sp ecimens of imported products in a manner 
that would not be "reasonable" or "necessary". One way this goal is achieved is by conducting 
control, inspection and approval procedures, such as testing on part of a product or a whole 
product that is representati ve of a lot or a consignment.  
7.420.   Therefore, the Panel  sees no support in the language or the context of Annex C(1)(e), read 
in light of its object and purpose, for Korea 's contention that measures covered by this provision 
are confined to those that apply to each and every individual product of a consignment. In the 
Panel 's view, such a narrow reading of Annex C(1)(e) would deprive this provision of its meaning 
and effect. It is normal practice by border inspection authorities to use "individual specimens" as 
representative of imported products to verify their con formity with laws and regulations.1260 If 
                                                
1252 The panel in EC – Approval and Marketing of Biotech Products addressed a claim under 
Annex  C(1)(e), but did not engage in interpretation of its terms, Panel Report s, EC – Approval and Marketing of 
Biotech Prod ucts, paras. 7.2494 -7.2496.  
1253 Japan's second written submission, para. 452.  
1254 Japan's second written submission, para. 458.  
1255 Japan's second written submission, paras. 451 -452 (quoting Japan' s response to Panel questions 
No. 97 and 98).  
1256 Korea's first wri tten submission, para. 340.  
1257 Oxford English Dictionary, "specimen", 
http://www.oed.com/view/Entry/186018 ?redirectedFrom=specimen#eid , last accessed on 18 August 2017.  
1258 Oxford English Dictionary, "individual", 
http://www.oed.com/view/Entry/94633?redirectedFrom=individual#eid , last accessed on 18 August 2017.  
1259 Panel Reports, Australia – Apples , para. 7.160; and Russia – Pigs (EU ), fn. 350.  
1260 For example, the IPPC Methodologies for Sampling of Consignments explains that "[i]t is usually not 
feasible to inspect entire consignments, so phytosanitary inspection is performed mainly on samples  obtained 
from a consignment." We note that  the OIE and Codex also produce guidelines on sampling. Available at 
https://www.ippc.int/stat ic/media/files/publications/en/1323947615_ ISPM_31_2008_En_2011 -11-
29_Refor.pdf , last accessed on 10 August 2017.   WT/DS495/R  
 
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  Annex C(1)(e) were only to apply to measures that require testing of each individual product in a 
consignment, a great deal of measures could escape the scope of the provision.  
7.421.   That being said, the Panel  also disagree s with Japan 's contention that a measure can be 
inconsistent with Annex C(1)(e) if the requirements are not limited to what is necessary to achieve 
the importing Member 's ALOP. Japan 's argument appears  to be a way to reformulate its claim 
under Article 5.6  and to establish an inconsistency with Annex C(1)(e) as a consequence of an 
inconsistency with Article 5.6 if the challenged measure is a control, inspection and approval 
procedure. The Panel  does not see such a relationship between the two provisions. In  the Panel 's 
view, Japan 's arguments cannot serve as a basis for a findi ng of inconsistency under 
Annex  C(1)(e).  
7.422.   Japan further submits that the additional testing requirements are not reasonable, becau se 
for products tested for caesium at the Korean border , the additional testing must take place in 
Japan. This, according to Japan, implies higher storage, shipping, and testing costs and related 
shipment delays.1261 Japan 's remaining argument under subparagr aph (e) relies thus entirely on a 
factual assertion tha t product specimens must be tested in Japan for the presence of the additional 
radionuclides.1262 As noted in section 7.5.5 above, the Panel does not agree wit h Japan that the 
measures per se  require that the additional testing be conducted in Japan. As such, Japan has also 
failed to prove its factual assertion and, as a result, that Korea 's requirements for control, 
inspectio n and approval of individual specime ns of products are not limited to what is reasonable.  
7.423.   Based on the foregoing, the Panel  finds that Japan has failed to substantiate its claim 
under Annex C(1)(e) of the SPS Agreement with regard to the adoption and maint enance of the 
2011 and the 2013 additional testing requirements . 
7.9.5   Criteria for the siting of facilities and the selection of samples  
7.424.   Annex C(1)(g) refers to the use of the same criteria in the siting of facilities and the 
selection of samples for imported a nd domestic products alike. The Pane l notes at the outset that 
neither prior panels, nor the Appellate Body, have addressed interpretation of this  provision . The 
Panel  will, therefore, begin its analysis by determining the ordinary meaning to be given to t he 
provision in its context and in t he light of the object and purpose.  
7.425.   In that regard, the Panel  notes that Korea has raised the issue of whether subparagraph 
(g) imposes a positive obligation on Members or has merely exhortatory meaning, due to the use 
of the verb "should" in the provision .1263 
7.9.5.1   Does Annex C(1)(g) impose a positive obligation?  
7.426.   Japan relies on prior panel and Appellate Body rulings to argue that the word "should" can 
have either a normative or a hortatory meaning.1264 Japan further argues that re ad in the light of 
its context, in p articular Article 8 and the chapeau  of Annex C(1), subparagraph (g) denotes a 
positive obligation.1265 Japan further supports its argument with a reference to reports by a panel 
and by the Appellate Body, which mention subp aragraph (g) as one of the obligatio ns listed in 
Annex C(1).1266 
7.427.   Korea contends that the interpretation of Annex C(1)(g) must give effect to the plain 
meaning of the term "should", which expresses exhortation rather than obligation.1267 Korea also 
contrasts the use of should in subparagraph (g) wi th the use of shall as well as indicative forms 
"are" or "be" in other provisions of the SPS Agreement.1268 Likewise, Korea juxtaposes the 
language of Annex C(1)(g) with that of Article 5.2.6 of the TBT Agreement, contendin g that the 
                                                
1261 Japan's second written submission, para. 459.  
1262 Japan's second written submission, para. 459.  
1263 Korea's first written submission, paras. 347 -349; second written submission, paras. 398 -404. 
1264 Japan's response to Panel question No. 103.  
1265 Japan's second written submission, paras. 470 -471; response to Panel question No. 103.  
1266 Japan's response to Panel question No. 103 (quoting the Appellate Body  report in Australia – Apples , 
para. 435, footnote 669, and the Panel Report, US – Poultry (China) , para. 7.357).  
1267 Korea's response to Panel question No. 103.  
1268 Korea's second written s ubmission, para. 399.   WT/DS495/R  
 
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  mandatory nature of the l atter is explicit through the use of the verb "are".1269 According to Korea, 
this difference in the language of various provisions ought to be given effect.1270 Korea relies in 
that regard on the panel report in US – Animals , which found that the use of should i n Article 5.4 
of the SPS Agreement denotes exhortation.1271 Korea concludes on that basis that Annex C(1)(g) 
is merely a "best effort provision" that encourages Members to minimize the inconvenience on 
importers in applicat ion of criteria for sampling and sit ing of facilities.1272 
7.428.   The Panel  begin s its interpretation of Annex C(1)(g) with reference to the relevance of the 
term "should". As regards its plain meaning, "should " is somewhat of a chameleon in the treaty 
text and the Appellate Body found in Canada – Aircraft that, depending on the circumstances, 
should can express either an exhortation or an obligation.1273  
7.429.   The panel in US – Animals , observed that "the use of 'should ' as opposed to 'shall' in any 
particular provision of [the SPS] Agreement was a deliberate  choice."1274 The Panel  further note s 
that the use of "should" in subparagraph (g) contrasts with the use of indicative forms "is" or "are" 
in subparagraphs (a) through (e) , (h) and (i) in th e same Annex . The Panel  agree s with the 
Appellate Body that "the cho ice and use of different words  in different places in the 
SPS Agreement are deliberate, and … the different words are designed to convey different 
meanings."1275 Following the approach of the  Appellate Body in Canada – Aircraft and Mexico – 
Taxes on Soft Drin ks as well as the panel in US – Animals, a conclusion on whether "should " is 
used as an exhortation or to express a duty or obligation must be based on the context of the 
provision as a wh ole.1276 Thus, it would be inappropriate for the Panel  to assume that b ecause 
"should" is exhortatory in Article 5.4 that it is automatically the same in Annex C(1)(g). The Panel  
must base our determination on the context of the provision. The Panel , therefor e, now turn s to 
the context of subparagraph (g).  
7.430.   First, the Panel  notes that the word "should " in Annex C(1)(g) is followed by "so as", which 
connects the two parts of the provision. Unlike a more attenuated expression "take into account" 
used in Article 5.4, which requires consideration of relevant facts, "so as" denotes  a result or a 
consequence, which subparagraph (g) aims to achieve.1277 Given the more tenuous language of 
Article 5.4, as well as the different context of that provision, it would be inappro priate to apply the 
conclusions reached by the panel in US – Animals  under Article 5.4 to Annex C(1)(g). The Panel  
understand s that the use of should in Annex C(1)(g) is meant to emphasise that the purpose of 
the provision is to minimize the inconvenience to applicants, importers, exporters or their agents 
and consistency with the obligation would be determined in that light.  
7.431.   Likewise, the Panel  is not persuaded by Korea 's argument juxtaposing the language of 
Annex C(1)(g) and Article 5.2.6 of the TBT Agreement. The Panel  notes that, unlike 
Annex  C(1)(g), Article 5.2.6 doe s not require using the same criteria for siting of facilities and the 
selection of samples, but that these criteria "are not such as to cause unnecessary 
inconvenience".1278 Annex C(1)(g) is thus at least as specific in its content as Article 5.2.6 of the 
TBT Agreement, which, Korea argues, is an example of a positive obligation.  We cannot, therefore, 
agree that the differences in language between Article 5.2.6  of the TBT Agreement and 
Annex  C(1)(g) can support an interpretation of subparagraph (g) as a horta tory provision.  
                                                
1269 Korea's opening statement at the second meetin g of the Panel, para. 143.  
1270 Korea's opening statement at the second meeting of the Panel, para. 143.  
1271 Korea's second written submission, para. 399 (citing Panel Report, US – Animals , para. 7.403).  
1272 Korea's second written submission, paras. 398 -401. 
1273 Appellate Body Report, Canada – Aircraft , para. 187; Certain ambiguity carried by the meaning of 
"should" was already recognised by William Shakespeare, who noted in Act IV of The Tragedy of Hamlet, Prince 
of Denmark  that "[T]his should is like a spendthrift s sigh | That hurts by easing."  
1274 Panel Report, US – Animals , para. 7.403.  
1275 Appellate Body Report, EC – Hormones , para. 164.  
1276 Appellate Body Report, Canada – Aircraft , para. 187; Appellate Body Report, Mexico – Taxes on Soft 
Drinks , para. 51; Panel Repor t, US – Animals , para. 7.399. See also  Panel Report, Guatemala – Cement II , 
footnote 854 to para. 8.196; and Panel Report, EC – Bed Linen (Article 21.5 – India) , para. 6.267.  
1277 Oxford English Dictionary, "so.., or so..as, so as", 
http://www.oed.com/view/Entry/183635?rskey=7wy899&result=4#eid21894696 , last accessed on 
18 August  2017.  
1278 Article 5.2.6 of the TBT Agreement reads as follows:  
5.2 When implementing the prov isions of paragraph 1, Members shall e nsure that: …  
5.2.6 the siting of facilities used in conformity assessment procedures and the selection of samples are 
not such as to cause unnecessary inconvenience to applicants or their agents[.]   WT/DS495/R  
 
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  7.432.   The Panel  further note s that Article 8 and the chapeau  of Annex C(1) provide respectiv ely 
that "Members shall observe the provisions of Annex C" and that with respect to any procedure to 
check and ensure the fulfilment of SPS measures, "Mem bers shall ensure" observance of 
subparagraphs (a) through (i).1279 Both provisions thus instruct Members  to comply with the 
individual subparagraphs of Annex C(1), implying that Annex C(1)(g) connotes a positive 
obligation. This understanding of the nature o f Annex C(1)(g) is consistent with the Appellate 
Body's ruling in Australia – Apples  that the " obliga tions contained in Annex C(1) are: … (g) that 
the same criteria be used in the siting of facilities used in the procedures and the selection of 
samples of  imported products as for domestic products".1280  
7.433.   In sum, having regard to the language of the whole of subparagraph (g) as well as the rest 
of Annex C and the SPS Agreement, the Panel concludes that Annex C(1)(g) imposes a positive 
obligation on the Members  to use the same criteria in the siting of facilities used in the procedures 
and the selection of samp les of imported as for domestic products so as to minimize the 
inconvenience to applicants, importers, exporters or their agents. The Panel  now move s on to 
assess Japan 's claims under that provision.  
7.9.5.2   Whether Korea 's additional testing requirements use the same criteria for siting 
of facilities  
7.434.   With respect to Korea 's alleged failure to use the same criteria for the siting of facilities, 
Japan 's claim relies  entirely on a factual assertion that samples of Japanese products tested at the 
Korean border have to  be returned to Japan to conduct the additional testing.1281 The Panel  has 
already concluded in section 7.5.5  above that Japan has failed to demonstrat e that such samples 
must undergo the additional testing in Japan. Therefore, Japan likewise fails to demonstrate that 
Korea 's 2011 and 2013 additional testing requirements are inconsistent with Annex C(1)(g), first 
clause.  
7.9.5.3   Whether the additional testing re quirements use the same criteria for selection 
of samples  
7.435.   To address Japan 's claims under Annex C(1)(g), second clause, the Panel has to first 
determine the meaning and the scope of the obligation. Japan submits that the term "selection of 
samples" refers to "a process whereby authorities select, for testing, a sub -part of a larger group 
of products (e.g., a consignment) for the purpose of enabling or verifying conclusions about 
relevant SPS -qualities of the larger gro ups of products."1282 Korea does not offer  any guidance on 
how the Panel should interpret the phrase "selection of samples". However, in its substantive 
defence Korea refers to Article 8 of the Korea Food Code on the selection of samples and to the 
Codex Gene ral Guidelines on Sampling.1283  
7.436.   Annex C(1 )(g), second clause requires that the same criteria should be used in the 
selection of samples for imported as for domestic products. The dictionary defines criterion as "[a] 
test, principle, rule, canon, or standard,  by which anything is judged or estimat ed", while same 
means "identical with what is indicated in the following context."1284 The term "selection" is in turn 
commonly understood as "[t]he act of choosing someone or something".1285 Finally, the dictionary 
defines  "sample" as "[a] relatively small quantity of material, or an individual object, from which 
the quality of the mass, group, species, etc. which it represents may be inferred."1286  
                                                
1279 Japan's second wr itten submission, para. 470. (emphasis  omitted)  
1280 Appellate Body Report, Australia – Apples , para. 435 and fn. 669 (emphasis added); see also Panel 
Report, US – Poultry (China) , para. 7.357.  
1281 Japan's second written submission, para. 475.  
1282 Japan's second written submission, para. 467 (citing Oxford English dictionary definitions of the 
terms "selection" and "sample".).  
1283 Korea's responses to Panel question Nos. 35, 100, and 102.  
1284 Oxford English Dictionary, "criterion", 
http://www.oed.com/view/Entry/44581?redirectedFrom=criteria#eid , last accessed on 18 August 2017.  
1285 Cambridge English Dictionary, "selection", 
http://dictionary.cambridge.org/dictionary/english/selection , last accessed on 18 August 2017.  
1286 Oxford English Dictionary, "sample", 
http://ww w.oed.com/view/Entry/170414?rskey=ExP6up&result=1&isAdvanced=false#eid , last accessed on 
18 August 2017.   WT/DS495/R  
 
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  7.437.   The Panel  finds a similar definition in the C odex General Guidelines on Sampl ing, which 
refers to "sample" as a "[s]et composed of one or several items (or a portion of matter) selected 
by different means in a population (or in an important quantity of matter)."1287 An analogous  
explanation is provided in the OIE Manual of Diagnostic Tests and Vaccines for Terrestrial Animals, 
which defines "sample" as "[m]aterial that is derived from a specimen and used for testing 
purposes."1288 A similar description of sampling can  also be found in Article 1.4.4 of the OIE's 
Aquatic Animal Health Code and the IPPC Guidelines for a Phytosanitary Import Regulatory 
System.1289 In light of the relevance of the standards, guidelines and recommendations of these 
organizations to the operation of the SPS Agreement the Panel  finds their definitions of these 
terms highly relevant to an understanding of the ordinary meaning of the phrase "selecti on of 
samples" in Annex C(1)(g).1290 
7.438.   With regard to the context of these terms, the Panel  has already noted that that 
Annex  C(1)(g) denotes a pos itive obligation imposed on Memb ers by virtue of Article 8 and the 
chapeau  of Annex C(1). Annex C(1) contains a number of obligations on how procedures have to 
be conducted to prevent imported products from being disadvantaged. These provisions govern 
practical aspects of control, inspec tion and approval procedures, which are distinct from the 
operation of substantive SPS requirements. With regard to the object and purpose of the provision, 
as reflected in its terms, the Panel  understand s that it is to ensu re that in their operation, 
procedures on sampling selection do not hinder imports of products to the detriment of their 
competitive opportunities.  
7.439.   Therefore, the Panel  understand s Annex C(1)(g), second clause, seen in its context, and in 
light of its obj ect and purpose, to address the rules Members use for selecting material that is 
representative of a consignment of products that will subsequently be tested as part of control, 
inspection and approval procedures.    
7.440.   For Japan to establish inconsistency of the challenged measures with Ann ex C(1)(g), it 
needs to demonstrate that the 2011 and 2013 additional testing requirements do not use the 
same criteria for the selection of samples for Japanese products as those used for Korean 
products. In support of its claim, Japan essentially raises two arguments.  
7.441.   First, Japan alleges that Korea employs different sample selection criteria by applying the 
pre-market additional testing requirements solely to Japanese products and not to Korean 
ones.1291 According to Japan, s uch treatment results in Japanes e products possibly being sampled 
twice, once at the pre -market stage and again at the point -of-sale, while Korean products could be 
subject to testing only at the point -of-sale.1292 Korea denies any discrimination in the sampl e 
selection process at the level  of the additional testing, while admitting that such a distinction is 
drawn with regard to the caesium and iodine testing.1293 Korea maintains that its sample selection 
criteria are governed by Article 8 of the Korea Food Code , setting forth specific rules o n the 
sampling process.1294 Korea adds that these criteria are based on Codex General Principles on 
Sampling and Codex Principles on the Use of Sampling and Testing in International Food Trade.1295  
                                                
1287 Codex Alimentarius Commission General Guidelines on Sampling, Document CAC/GL 50 -2004,  2004.  
1288 OIE Manual of Diagnostic Tests and Vaccines for Terre strial Animals, Glossary of Terms, "sample" 
available at: http://www.oie.int/fileadmin/Home/eng/Heal th_standards/tahm/0.04_GLOSSARY.pdf , last 
accessed on 5 July 2 017. 
1289 Article 1.4.4 (3) of the OIE Aquatic Animal Health Code states:  
The objective of sampling from a population is to select a subset of units from the population 
that is representative of th e population with respect to the object of the study such as t he 
presence or absence of disease. Sampling should be carried out in such a way as to provide the 
best likelihood that the sample will be representative of the population, within the practical 
constraints imposed by different environments and production sy stems.  
Available at http://www.oie.int/index.php?id=171&L=0&htmfile=chapitre_aqua_ani_surveilla nce.htm , 
last accessed on 5 July 2017. Section 5.1.5.2.2 of th e IPPC Guidelines for a Phytosanitary Import Regulatory 
System states that "[s]amples may be taken from consignments for the purposes of inspection, or for 
subsequent laboratory testing, or for reference purposes".  
1290 See Article 3 and Annex A(3) of the SP S Agreement.  
1291 Japan's second written submission, para. 473.  
1292 Japan's response to Panel question No. 159.  
1293 Korea's first written submission, para. 352; second written submission, paras. 407-408. 
1294 Korea's responses to Panel question Nos. 102 and 35.  
1295 Korea's response to Panel question No. 100.   WT/DS495/R  
 
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  7.442.   In its second argument, Japan c ontends that Korea applies diffe rent sample selection 
criteria by requiring additional testing of food products in which at least 1 Bq/kg of caesium or 
iodine has been detected with regard to all consignments of all Japanese food imports.1296 This 
treatment d iffers, according to Japan, from  that of products tested at the point -of-sale, where the 
1 Bq/kg testing level is applied only to products randomly  sampled from a group of the 150 most 
consumed food products .1297 Korea, for its part, reiterates that the only difference is that it selects 
samples from every Japanese consignment at the  stage of caesium and iodine testing and that 
such testing has not been challenged by Japan.1298 Korea also disagrees with the assertion that it 
does not test all domestic products in which 1 Bq/kg or more of caesiu m or iodine has been 
detected for the presence of the additional radionuclides.1299 
7.443.   The Panel  notes that Japan does not object to the application of the pre -market caesium 
and iodine testing to randomly selected samples from all consignments of Japanese food.1300 
However, Japan 's argument builds upon the application of this testing to contend that it leads to 
an increased frequency of testing for the additional radionuclides.1301 In particular, Japan argues 
that even though it does not object to the caesium and iodi ne testing on randomly selected 
samples from all consignments, the Panel should take it into account a s the result of the test is the 
sampling selection criterion for the application of the additional testing.1302  
7.444.   Both of Japan 's arguments conflate the likel ihood that products will be subjected to testing 
or the sequencing of multiple tests of certain sample s with the overall criteria for the selection of 
samples. The Panel  has difficulty understanding how what Japan is referring to equates to the 
selection o f samples within the meaning of Annex C(1)(g). As noted above, subparagraph (g) 
governs the types of m easures that set forth rules for how particular samples are chosen from a 
larger lot or consignment to be tested as a representative of the whole. Japan s eems to accept this 
in the definition of a sample that it proffers. Nevertheless, Japan 's arguments ad dress what 
happens to the sample after it is selected – namely what contaminants it is tested for and 
when.1303 Japan fails to identify in its arguments any elements of Korea 's sample selection criteria 
that are different for Japanese products than for Korean  ones. After reviewing the available 
evidence, the Panel concludes that  such sample selection criteria are included, for example, in the 
Korea Food Code, which Japan does not refer to in its arguments . Instead of challenging the 
relevant aspects of Korea 's criteria for sample selection, Japan is in essence criticising Korea 's 
overall radiological food safety regime for potentially subjecting Japanese produc ts to testing for 
different radionuclides at different times. These issues are not relevant to a claim  under 
subparagraph (g), second clause.  
7.445.   Therefore , the Panel  finds that Japan has failed to sub stantiate its claim under 
Annex  C(1)(g), second clause.  
7.446.   The Panel  conclude s that Japan has failed to establish that Korea acted inconsistently with 
both first a nd second clause of Annex C(1)(g) with regard to adoption and maintenance of the 
2011 and  the 2013 additional testing requirements.  
7.9.6   Conclusion under Artic le 8 and Annex C  
7.447.   In the light of the above, the Panel  finds that Japan has failed to establish that Ko rea acted 
inconsistently with the provisions of Annex C(1), subparagraphs (a), (c), (e) and (g)  and, as a 
consequence, with Article 8 of the SPS Agreement  in respect of the adoption and maintenance of 
the 2011 and the 2013 additional testing requirements.  
                                                
1296 Japan's responses to Panel question Nos. 102 and 159.  
1297 Japan's responses to Panel question Nos. 102 and 159.  
1298 Korea's first written submission , para. 352; second written submission, para. 408.  
1299 Korea's second written submission, para. 407.  
1300 See section 2.7.2 above.  
1301 Japan's first written submission, para. 133.  
1302 Japan's response to Panel question No. 159.  
1303 The Panel notes that Japan has not argued that a new sampl e must be selected when additional 
testing is required.   WT/DS495/R  
 
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  7.10  Transparency obligations  
7.448.   The SPS Agreement contains obligations to facilitate the transparency of SPS measures. 
These obligations are embodied in Article 7 and Annex B. In this dispute, Japan claims that Korea 
has acted inconsistently with Article 7 and An nex B(1), B(3)(a) and B(3)(b) of the SPS Agreement. 
In particular, Japan alleges that Korea failed to publish its import bans and additional testing 
requirements in a manner that allows interested Members to become acquainted with them, as 
required by Anne x B(1), and that Korea 's Enquiry Point did not provide relevant documents and 
answers to Japan 's reasonable questions as required by Annex  B(3)(a) and (b) . 
7.449.   The main point of contention between the parties is whether Korea 's announcements of the 
imposition of the import bans and additional testing requirements via press releases posted on 
government websites were sufficient to comply with the obligation in A nnex B(1). Additionally, the 
parties differ as to whether Korea 's Enquiry Point 's responses to two requests for documents and 
answers from Japan (24 June 2014 and 13 November 2014) fulfilled Korea 's obligations under 
Annex B(3).  
7.450.   Article 7 of the SPS Agreem ent provides:  
Members shall notify changes in their sanitary or phytosanitary measures and shall 
provide information on their sanitary or phytosanitary measures in accordance with 
the provisions of Annex B.  
7.451.   Annex B of the SPS Agreement, referenced in Artic le 7, provides, in the relevant parts:  
Annex B  
Transparency of Sanitary and Phytosanitary Regulatio ns 
Publication of regulations  
1. Members shall ensure that all sanitary and phytosanitary regulations5 which have 
been adopted are published promptly in such  a manner as to enable interested 
Members to become acquainted with them.  
(…) 
Enquiry points  
3. Eac h Member shall ensure that one enquiry point exists which is responsible for the 
provision of answers to all reasonable questions from interested Members as well as 
for the provision of relevant documents regarding:  
(a) any sanitary or phytosanitary regula tions adopted or proposed within its territory;  
(b) any control and inspection procedures, production and quarantine treatment, 
pesticide tolerance and food additive approval procedures, which are operated within 
its territory;  
(c) risk assessment procedur es, factors taken into consideration, as well as the 
determination of the appropriate level of sanitary or phytosanitary protection;  
(d) the membership and p articipation of the Member, or of relevant bodies within its 
territory, in international and region al sanitary and phytosanitary organizations and 
systems, as well as in bilateral and multilateral agreements and arrangements within 
the scope of this Agreem ent, and the texts of such agreements and arrangements.  
_________________  
5 Sanitary and phytosanit ary measures such as laws, decrees or ordinances which are applicable 
generally .  WT/DS495/R  
 
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  7.10.1   Whether Korea 's measures are SPS regulations within the meaning of Annex B  
7.452.   The publication obligation in Annex B(1) only applies to adopted SPS regulations1304, 
whereas Annex B(3)(a) refers to the Enquiry Point providing answers to all reasonable questions 
and relevant documents regarding any proposed or adopted SPS regulations appli cable within its 
territory. Furthermore, Annex B(3)(b) extends the scope of the E nquiry Points responses to include 
questions and requests for documents relating to "control and inspection procedures …".  
7.453.   The Panel has already concluded that the additional testing requirements are control, 
inspection and approval procedures. Therefore, they fall within the scope of Annex B(3)(b). 
However, with respect to Annex B(1) and B(3)(a), as explained in  paragraph  7.1 abov e pursuant 
to our  obligation under Article 11 of the DSU, the Panel will first examine whether Japan has 
demonstrated that Korea 's measures are SPS regulations.  
7.454.   The term SPS regulations is defined in the footnote to Annex B(1) as "[SPS] measures 
such as laws, decrees or o rdinances which are applicable generally". The Appellate Body in Japan – 
Agricultural Products II  clarified that the footnote to Annex B(1) includes an illustrative list of 
instruments, as indicated by the words "such as". This list is th erefore not exhaus tive. Prior panels 
and the Appellate Body have explained that SPS regulations within the meaning of Annex B(1) 
include instruments that are "applicable generally" and "similar in character" to laws, decrees or 
ordinances.1305 Japan relies on  this prior jurisp rudence to maintain that Korea 's measures – import 
bans and additional testing requirements, contained in public announcements from the Korean 
Prime Minister, MFDS and the M IFAFF are measures that are applicable generally and are similar in 
character to laws, decrees or ordinances.1306 Korea, for its part, does not contest that its measures 
are SPS regulations and thus subject to the requirements in Annex B(1) and B(3)(a).1307  
7.455.   The Panel sees no reason to disagree with the parties in this respec t. In particular, the 
Panel notes that Korea 's press releases announcing the import measures use language that 
indicate that the measures apply to "an unidentified number of economic operators"1308, are not 
addressed to "individual persons or entities"1309; appl y to all products of a certain type upon 
importation and are "not limited to a single import or a single importer".1310 In particular, the 2013 
press release announcing the blanket import ban and the additional testing requirements bans all 
fishery products o riginating in eight particular prefectures of Japan or subjects all fishery and 
livestock products to additional testing requirements if they originate from any other Japanese 
prefecture.1311 Similarly, the press releases announcing the additional testing req uirements in 
2011 and the product -specific bans in 2012 refer to all imports of a particular product from a 
particular region.1312  
7.456.   Therefore, the Panel finds that Japan has established that Korea 's measures are 
SPS regulations and thus are subject to the req uirements in Annex B(1) and B(3)(a).  
                                                
1304 Panel Report, Russia – Pigs (EU) , para. 7.1422; Panel Report,  Japan – Agricultural Products II , 
para. 8.109.  
1305 Panel Report, India – Agricultural Products , para. 7.738; Appellate Body Report, Japan – Agricultural 
Products II , para. 105.  
1306 Japan's first written submission, paras. 161 -162 (referring to Appellate Body Report, Japan – 
Agricultural Products II , para. 105.).  
1307 Korea's first written submission, paras. 369  and 371.  
1308 Panel Report, US – Under wear, para. 7.65.  
1309 Appellate Body Report, US – Underwear , p. 21.  
1310 Panel Report, EC – IT Products , para. 7.1034.  
1311 PMO Blanket Import Ban and Additional Testing Requirements Press Release, (Exhibit JPN -3.b), p. 1 
(emphasis omitted):  
…the distribution of f ishery products from these regions will be completely banned in Korea regardless 
of their radioactive contamination,  and, With regard to the Japanese fishery and/or livestock products from 
regions other than 8 ken near Fukushima, if even trace amounts of c esium are detected, the government will 
require the submission of test report regarding presence of other nuclides s uch as plutonium and strontium.  
1312 For example, Product -Specific ban on Cod from Miyagi and Iwate  , (Exhibit JPN -76.b),  states that, 
"Cod ca ught in Miyagi -ken and Iwate -ken, Japan is subject to temporary import suspension."  
Korea's Press Release announcing  the 2011 testing requirements, entitled "Status of KFDA's Response 
and Management Measures Regarding the Japanese Nuclear Crisis (5)", (Exh ibit JPN-55.b (revised)), 
(Exhibit  KOR-72-(revised)), states that the "…measures will apply to foods from Japan d eclared for import as of 
May 1,  2011.   WT/DS495/R  
 
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  7.457.   Japan claims that the manner in which Korea posted the press releases announcing the 
blanket import ban, the product -specific bans and the additional testing requirements, was 
insufficient to fulfil the obligation in A nnex B(1), because the press releases do not contain the 
actual regulations1313, and because they were not posted in locations where Members could 
reasonably expect to find them.1314 
7.458.   Under Annex B(1), Members are obliged to ensure that an adopted measure is publ ished 
promptly in such a manner as to enable interested Members to become acquainted with it. Japan 
does not dispute the promptness of Korea 's actions, but rather whether the actions it did take – 
posting press releases on government agency or the Prime Mi nister's websites – are sufficient to 
fulfil the other elements of the obligation.  
7.10.1.1   Publish in such a manner as to enable interested Members to become 
acquainted with them  
7.459.   Korea and Japan disagree on whether Annex B(1) requires Members to publish the text of 
the regulation itself. Japan argues that the text of the treaty provision specifies that it is the 
regulation itself that must be published, and not a summary, synopsis, or other description of the 
text.1315 Korea argues that the publication of an SPS regu lation need only contain sufficient 
information for interested Members to be "put on notice" regarding a new SPS measure1316, and 
that the information that should be published normally consists of the "basic requirements of the 
measure, the government agency responsible for implementing the measure, the products subject 
to the measure, and the effective date of the measure".  Brazil, Canada, New Zealand, Norway, and 
the United States all agree that the obligation in B(1), at minimum, requires publication of the  text 
of the relevant SPS measures in all instances.1317 Brazil, Canada, and New Zealand further argue 
that in some cases, information additional to the regulation itself may be required to satisfy the 
obligation to enable that Members can acquaint themselves  with the measures.1318 For its part, the 
European Union accepts that in exceptional circumstances the publication of a text falling short of 
the SPS regulation may be sufficient.1319 
7.460.   Although this is the first time a claim has been raised  on the scope of the ob ligation to 
publish, under  Article 7 of the SPS Agreement, transparency is a fundamental obligation woven 
throughout the WTO agreements. Prior panels and the Appellate Body have interpreted similar 
publication obligations in the GATT 1994, the Safeguards A greement, the Anti -Dumping 
Agreement, and the SCM Agreement. The panel in Chile – Price Band System  concluded that 
publication  obligation  requires that relevant documents be "generally made available through an 
appropriate medium ".1320 The panel in EC – IT Pr oducts clarified that a publication does not 
necessarily require publication in an official bulletin or gazette. That panel noted that there are two 
distinct obligations in Article X of the GATT 1994. While Article X:1 requires that measures be 
"published" , Article X:2 refers to "officially published" measures.1321 With respect to publication via 
                                                
1313 Japan's second written submission, paras. 310 -321. 
1314 Japan's second written submission, para. 349.  
1315 Japan's second written submission, para. 313.  
1316 Korea's response to Panel question No. 73.  
1317 New Zealand's, Brazil's, Canada's, Norway's, and the United States' third -party responses to Panel 
question No. 1.  
1318 New Zealand's third -party response to Panel ques tion No. 1; Brazil's third -party responses to Panel 
question Nos. 1 -2; Canada's third -party response to Pa nel question No. 1.  
1319 European Union's third -party response to Panel question No. 1.  
1320 Panel Report, Chile – Price Band System , para. 7.128. Article 3 .1 of the Agreement on Safeguards 
provides, in the relevant part: "The competent authorities shall publish  a report setting forth their findings and 
reasoned conclusions reached on all pertinent issues of fact and law."  
1321 Panel Report, EC – IT Products , paras. 7.1081 -7.1084. Article X:1 of the GATT 1994 provides, in 
relevant part:  
Laws, regulations, judicial decisions and administrative rulings of general application, made 
effective by any contracting party, pertaining to the classification or the valuatio n of products for 
customs purposes, or to rates of duty, taxes or other charges, or to requirements, restr ictions or 
prohibitions on imports or exports or on the transfer of payments therefor, or affecting their sale, 
distribution, transportation, insuranc e, warehousing inspection, exhibition, processing, mixing or 
other use, shall be published  promptly in suc h a manner as to enable governments and traders 
to become acquainted with them . (emphasis added)  
Article X:2 of the GATT 1994 provides:   WT/DS495/R  
 
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  the internet, the panel in China – Broiler Products  found that it is "generally recognized and 
accepted that the manner to inform unknown interested parties  in an adm inistrative or judicial 
proceeding is by way of public notices, including notices published in an official gazette or on the 
internet." Noting that similar concepts are reflected in Article X of the GATT 1994 and Article 12 of 
the Anti -Dumping Ag reement, t he panel explained that "[t]hese provisions rely on the notion that 
the intended recipients will consult the relevant documents emanating from national authorities of 
the countries where they conduct business."1322  
7.461.   Looking to the other provisions i n Annex B for context, the Panel notes that Annex B(5)(a) 
also refers to publication, but to a notice of a proposed SPS regulation. We agree with Japan that 
the use of the term "notice" in Annex B(5)(a), which refers to the publication of a notice in 
advan ce of the regulation, as opposed to the term "regulation" in Annex B(1) demonstrates that 
the publication requirements in the two provisions must be qualitatively different and that 
therefore, Annex B(1) requires publication of something more than an annou ncement th at the 
regulation exists.1323 This is further supported by Annex B(5)(c) which requires Members to 
provide other Members with copies of the proposed regulation. Because Korea refers to its 
measures as being adopted in an emergency situation1324, the Pa nel also l ooks to Annex B(6)(b) 
for context. In that regard, the Panel notes that Annex B(6)(b) requires Members to provide other 
Members with copies of the regulation itself. Such requirements to provide copies of the 
(proposed) regulation itself are abse nt from Annex B(1). The Panel understand s this difference to 
support a conclusion that the obligation in Annex B(1) is to  publish the content of the 
SPS regulation, otherwise the drafters would have included a similar obligation , as those in 
Annex  B(5)(c) and B(6)(b ), to provide a copy of the (proposed) regulation itself separately . Thus, 
according to the text in its  context and in light of Annex B(1) 's object and purpose of achieving 
transparency, the obligation in Annex B(1) is to publish the content of t he SPS reg ulation – not an 
announcement of its existence or a brief summary. This can be achieved inter alia  by publishing 
the actual regulation through a formal legal instrument, such as in an official gazette , through 
decision, or by reproducing the cont ent of the  regulation in a press release or on a webpage.  
7.462.   The Panel notes, however, that publication of the regulation itself does not necessarily 
ensure that the information in it is sufficient to enable Members to acquaint themselves with the 
measure. I n this res pect, the Panel  notes that the dictionary defines "acquaint" as to "make 
[k]nown; become familiar (with); "inform".1325 The panel in EC – IT Products  concluded that the 
purpose of the publication requirement is so that governments and traders know w hat condit ions 
would apply to their goods when imported into another Member 's territory.1326 In a similar vein, 
the panel in Thailand – Cigarettes (Philippines)  found that a publication simply listing components 
of a measure did not satisfy the publication ob ligation i n Article X:1 of the GATT 1994, because 
this list "would not enable importers to become acquainted with the detailed rules" applicable to 
them.1327 According to that panel, the fact that importers had engaged with the measure and 
                                                                                                                                                  
No measure of general application taken by any contracting party effecting an advance in a rate of duty 
or other charge on imports under an established and uniform practice, or imposing a new or more burdensome 
requirement, restriction or prohibition on imports, or on t he transfer of payments therefor, shall be enforced 
before such measure has been officially published . (em phasis added)  
1322 In the context of anti -dumping and countervailing duties, panels and the Appellate Body have had 
the opportunity to examine whether po sting information on a government website is sufficient to comply with 
the obligation to notify interested  parties of the information the authorities require from them (Article 6.1 of 
the Anti -dumping Agreement and Article 12.1 of the SCM Agreement). The A ppellate Body in Mexico - Rice 
found that simply posting an announcement of the initiation of the investiga tion on the investigating authority's 
website along with the requested information and relevant deadlines was not sufficient to satisfy the obligation  
to notify all known and unknown exporters. See Appellate Body Report, Mexico – Anti-Dumping Measures on 
Rice, paras. 245 -253. The panel in China – Broiler Products  concluded that internet notifications may be the 
only practicable way to comply with the no tification obligation for [a]n investigating authority which has no 
other, more direct, means of reaching certain producers/exporters. See Panel Report, China – Broiler Products, 
paras.  7.303 -7.305.  
1323 Japan's second written submission, para. 314; response to Panel question No. 75; Oxford English 
Dictionary, OED Online, regulation, n. and adj., (Exhibit JPN -223). 
1324 Korea's first written submission, paras. 31, 33, and 57.  
1325 The New Shorter Oxford English Dictionary , (L. Brown, Ed.), Oxford University Press, 1 993, Vol. 1, 
pp. 19 -20. 
1326 Panel Report, EC – IT Products , para. 7.1085.  
1327 Panel Report, Thailand – Cigarettes (Philippines) , para. 7.789.   WT/DS495/R  
 
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  obtained revisions "d[id] not  prove … that importers were apprised of the specific principles and 
methods" applicable to their products.1328  
7.463.   Annex B(2) provides contextual sup port for an understanding that the obligation in B(1) 
requires the importing Member to ensure that the publicati on of its regulation  contains sufficient 
elements to allow interested Members to know what conditions would apply to their goods, 
including the specific principles and methods applicable to the products. Annex B(2) requires 
Members to allow a reasonable in terval between publication and entry into force of SPS regulations 
"in order to allow time for producers in exporting Members, and particularly in developing country 
Members, to adapt their products and methods of production to the requirements of the impo rting 
Member". Producers in exporting Members cannot adapt their products and methods to the 
requirements of the importing Member if they do not  understand them in sufficient detail. We 
agree with Korea that the specific elements that will allow interested  Members to become 
acquainted with an SPS regulation may vary from regulation to regulation.1329 Some of the 
essential elements can be inferred fro m the substantive requirements for promulgating 
SPS regulations found in the SPS Agreement1330, and from the contex t and object and purpose of 
Annex B(1) . They may include the objective pursued by the regulation, the specific risk that the 
regulation addresse s and the appropriate level of sanitary or phytosanitary protection adopted by 
the Member1331, whether relevant int ernational standards, guidelines, or recommendations exist, 
and if the measure is based on that standard, conforms to it, or seeks to achieve a higher level of 
protection.1332 In light of the goal of enabling Members to know what conditions apply to their 
products and to give them time to adapt to the new requirements one would also expect 
information on: the substantive and procedural requirements t hat an exporter  must fulfil, the date 
on which the regulation takes effect, the products affected by the SPS reg ulation, as well as, in the 
case of regulations affecting specific Members or regions, the Members or regions the regulation 
applies to.  Japan s pecifically argues that in addition to listing the Members or regions a regulation 
applies to, the importing Mem ber should also be required to specify the rules of origin that will be 
applied.1333 We do not find a basis for this in the provisions of the SPS A greement or in the 
guidance from the SPS Committee on publication.1334 Members  are encouraged to provide as much 
information in their publications as possible to assist traders – such as if there are special rules of 
origin – however,  the Panel does not see a  specific obligation to publish rules of origin . The Panel 
finds contextual support for this understanding in Annex B(5)(b) which  requires that a notification 
include information on the products covered, and, the objective and rationale of a proposed 
regulation.1335 Annex B(6)(a) requires the same and adds that the nature of the urgent problem(s) 
be included as well.1336 In the Panel 's view, it would be paradoxical if Annex B(1) required less 
information in the publication of an adopted regulation than that requi red in the notification of a 
proposed regulation or one adopted on an emergency basis.  
                                                
1328 Panel Report, Thailand – Cigarettes (Philippines) , para. 7.790.  
1329 Korea's response to Panel question No. 73.  
1330 This is in line with the Appellate Body's findings in the context of Article 12.2.2 of the Anti -Dumping 
Agreement and Article 22.5 of the SCM Agreement, which require giving of a "public notice" of certain decisions 
made in the process of imposition of measures . Although the provision mandating publication provides 
guidance regarding the content of the publi c notice, the Appellate Body noted in China – GOES  that the 
required content of these notices is linked to "the content of the findings needed to satisfy the  substantive 
requirements" for the imposition of measures in the Anti -Dumping Agreement and of the SCM Agreement 
(Appellate Body Report, China – GOES , para. 257). Similarly, in Australia – Apples , the Appellate Body referred 
to the main elements of SPS mea sures in the context of a Member demonstrating that a proposed alternative 
measure achieved the imp orting Member's ALOP. Appellate Body Report, Australia – Apples , para. 364.  
1331 Appellate Body Report, Australia – Salmon , footnote 161 (finding that Annex B(3 ) and Article s 4.1, 
5.4 and 5.6  of the SPS Agreement impl y "a clear obligation of the importing Mem ber to determine its 
appropriate level of protection").  
1332 See SPS Agreement, Article 3.3. See also Appellate Body Report, EC – Hormones , paras. 174 -177. 
1333 Japan's second written submission, paras. 329 -331, 383 -384. 
1334 See G/SPS/7/Rev.3, Recommended procedur es for implementing the transparency obligations of the 
SPS Agreement (Article 7), 1 December 2008 (Recommended Transparency Procedures), paras. 58 -62. 
1335 Annex B(5)(b) of the SPS Agreement provides:  
notify other Members, through the Secretariat, of the pro ducts to be covered by the regulation together 
with a brief indication of the objective and rationale of the proposed regulation. Such notifications shall ta ke 
place at an early stage, when amendments can still be introduced and comments taken into account . 
1336 Annex B(6)(a) of the SPS Agreement provides:  
immediately notifies other Members, through the Secretariat, of the particular regulation and the 
products c overed, with a brief indication of the objective and the rationale of the regulation, including the  
nature of the urgent problem(s).   WT/DS495/R  
 
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  7.464.   Reading the obligation in  Annex B(1) holistically and in light of the interpretations of other 
publication obligations in WTO Agreements warrants a conclusion that to co mply with the 
requirement, in Annex B(1), the publication must make the measures generally known or available 
through an appropriate medium and contain sufficient content that the importing Member will 
know the conditions (including specific principles and  methods) that apply to its goods. Therefore, 
the obligation in Annex B(1) refers not just to the mere act of pl acing an announcement on a 
website, but doing so in a way that would make the measure generally known to importers with 
sufficient content to en able them to become acquainted with it. 
7.10.2   Did Korea publish its SPS regulations in a manner that allows interested  
Members to become acquainted with them?  
7.465.   Japan argues that the manner in which Korea posted the press releases was insufficient to 
fulfil the obligation in Annex B(1) because the press releases did not have sufficient content to 
enable Members to become ac quainted with their requirements, and bec ause posting the  press 
release s on different  government ministr ies' website s obstructs the interested Members ' abilities to 
locate  the measures.1337 Korea responds that Annex B(1) does not provide a list of specific de tails 
that must be included as part of th e publication of an SPS regulation.  In particular, Korea notes 
that the processing or preparation method is often not specified in SPS regulations, and the 
specific rules of origin and the detection limits, are not  required to be published as part of the 
SPS regulation pursuant to Annex B(1)(3). Thus, failure of a publication to include one or more 
specific details does not necessarily mean that there has been a violation of Annex B(1).1338 Korea 
argues that there must  be a practical limit to the information that must be published, and that 
Annex B(1) cannot become an unlimited obligation that does not have a practical delimitation in 
terms of the information that must be included in the publication.1339 Korea further cont ends that 
the posting of press releases o n government websites makes them "generally available", and that 
considering how governments operate in the modern world, no form of publication would be more 
"generally available" than documents posted on the websi tes of official governmental agencies.1340 
7.466.   The Panel will examine whether, as Japan claims, Korea has failed to publish its regulations 
in such a manner as to enable interested Members to become acquainted with them, for the 
import bans and the additional tes ting requirements respectively.  
7.10.2.1   Import ba ns 
7.467.   Japan argues that Korea does not provide the full text of the measures in the press 
releases announcing the blanket and product -specific import bans. Korea initially responded that 
the press releases are themselv es the measures.1341 However, when the Panel  sought clarification 
on the legal standing of the press releases, Korea clarified that while the content of its measures 
was published in the form of press releases, separate and distinct decisions of the Minister do 
exist.1342 For the product -specific bans Korea provided the Panel with the decisions of the Ministry 
on which the press releases are based.1343 Korea did not provide any such document for the 
blanket import ban, however the Panel notes that the press release itself refers to a meeting of 
related min isters, chaired by the Prime Minister, which took place on 5 September as well as a 
consultation between the ruling party and the Government which took place on 6 September which 
was the same day the press release w as posted.1344 
7.468.   With regard to whether the press releases contain the content of the regulations, Japan 
contends that the press releases concerning the product -specific bans fail to specify the product 
                                                
1337 Japan's second written submission, paras. 317, 349; response to Panel question No. 81.  
1338 Korea's second written submissio n, paras. 327 -333. 
1339 Korea's second written submission, para. 333.  
1340 Korea' first written submission, para. 361; second written submission, para. 314.  
1341 Korea's second written submission, para. 324.  
1342 Korea's responses to Panel question Nos. 153 and 154.  
1343 Korea's response to Panel question No. 154. Korea refers to: Report on Temporary Import 
Suspension of Fishery Products from Japan (3 May 2012), (Exhibit KOR -286); Report on Temporary Import 
Suspension of Fishery Products from Japan (26 June 2012), (Exhibi t KOR -287); Report on Temporary Import 
Suspension of Fishery Products from Japan (28 Augus t 2012), (Exhibit KOR -288); Report on Temporary Import 
Suspension of Fishery Products from Japan (13 November 2012), (Exhibit KOR -289).  
1344 PMO Blanket Import Ban and A dditional Testing Requirements Press Release, (Exhibit JPN -3.b), p. 1. 
(emphasis original) .  WT/DS495/R  
 
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  scope of Korea 's ban and the applicable rules of origin to  determine whether a product originates  
from the affected prefecture. Additionally, according to Japan, the press releases announcing the 
blanket import ban fail to specify the exact scope of the phrase "fishery products", the applicable 
rules of origin an d the legal status of the product -specific bans after the imposition of the blanket 
ban on fisheries products from 8 prefectures.1345 
7.469.   According to Korea, the press releases include the requisite information to comply with 
Annex B(1).1346 In support of its argume nt that the information provided by the  press releases was 
sufficient to enable interested Members to become acquainted with them, Korea stresses that 
several of Japan 's exhibits were compiled using information from Korean government websites.1347 
7.470.   The main co ntent in the press release announcing the product specific ban on Pacific Cod 
in the prefectures, Miyagi and Iwate, is as follows:  
The Ministry of Food, Agriculture, Forestry and Fisheries ("MIFAFF") (Minister: Kyu -
Yong Seo) announced that it took a measur e of temporary import suspe nsion on cod 
caught in Miyagi -ken and Iwate -ken, Japan on May 2.1348 
7.471.   The press release states the product subject to the ban, i.e. "cod", and the prefectures this 
product is caught in, "Miyagi" and "Iwate", as well as the date the b an was imposed. We note tha t 
all the press releases announcing the product -specific bans at issue provide at least the 
information quoted from the press release above.1349 
7.472.   Therefore, the Panel finds that the press releases announcing the product -specific impo rt 
bans contain the content  of the regulation itself. They list the goods (the specific fish species), the 
origin (the 8 prefectures), and the conditions applicable (a complete ban). However, as noted 
above, publication of the text of the regulation is in and of itself insufficient for conformity to 
Annex B(1) ; the publication must be in such a manner to enable a Member to become acquainted 
with the relevant measure. Although publication can be achieved in various formats, interested 
Members must be able to  easily locate the measures  and understand that measures concerning 
such matters will be available in a particular location.  
7.473.   With respect to the accessibility of the press releases announcing the product -specific 
bans, the Panel notes that Korea has provi ded a link to a web address  to the Panel that currently 
directs to the press releases for the product -specific bans.1350 The Panel  also note s that the link 
Korea provided is for a website of the Ministry that is normally charged with regulating the 
products g overned by the measures at issue.1351 
7.474.   Unfortunately, the Panel has no way of knowing whether that web address was available 
on the day Korea announced the measures and what the available content was on that day. Korea 
did not provide an archived version of th e website from the appropri ate time -period.1352 Moreover, 
Korea did not provide any evidence to demonstrate that at the time of adoption of the measure 
interested Members would have known to look to that website for information on SPS measures 
governing these  products.1353  Therefore, the Panel  finds that Japan has made a prima facie  case 
                                                
1345 Japan's second written submission, paras. 329 -330. 
1346 Korea's response to Panel question No. 73.  
1347 Korea's first written submission, para. 372.  
1348 Product -Specific ban on Cod from Miyagi and Iwate  , (Exhibit JPN -76.b).  
1349 Product -Specific ban on Cod from Miyagi and Iwate  , (Exhibit JPN -76.b); Product -Specific ban on 
35 Fishery Products from Fukushima , (Exhibit JPN -77.b); Product -Specific ban on Cod from Aomori , 
(Exhibi t JPN-78.b);  Product -Specific ban on Cod from Ibaraki , (Exhibit JPN -79.b).  
1350 Korea's resp onse to Panel question No. 114.  
1351 Korea's response to Panel question No. 114.  
1352 The Panel requested Korea to provide the website of the agency where it was posted and  the 
address of agency's website where the press release appears. See Panel question No. 1 14. 
1353 See Korea's response to Panel question No. 114; according to this response, there is no official 
document indicating where these measures can be found. See also  Japan's comments on Korea's response to 
Panel question No. 114 noting that:  
The URLs pro vided in the column "agency's website where the press release appears" do not in fact 
correspond to the relevant agency's websites. Instead, they are direct links to the press releases that 
correspond to the exhibits listed. Thus, it cannot be gauged from these links whether the websites on which 
the press releases are posted are readily navigable and/or contain filters enabling search by origin, or product, 
as Korea a sserts is the case.   WT/DS495/R  
 
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  that Korea did not publish the measures in a manner so as to enable Japan to become acquainted 
with the challenged measures.  
7.475.   Korea also argues that the fact Japan referred to th e SPS measures in its reque st to 
Korea 's SPS Enquiry Point is proof that Japan was acquainted with them. Japan expressly 
acknowledges that it was aware of the measures and that the K orean Government made its 
SPS measures public through press releases.1354 In the Panel 's view however, t his does not rebut 
Japan 's prima facie case that Korea did not publish the measures in a manner so as to enable 
Japan to become acquainted with them. The Panel is not of the view, that just because a Member 
is aware of a press re lease announcing a measure , or the fact that a measure has been made 
public , is necessarily sufficient to comply with the obligation in Annex B(1). The publication must 
stand on its own.   
7.476.   In light of the above, the Panel finds that for the product -specific  import bans announced 
in press releases dated 3 May 2012, 26 June 2012, 29 August 2012, and 13 November 20121355, 
although Korea published the content of the regulations, it did not do so in such a manner as to 
enable Japan to become acquainted with them. Co nsequently, the Panel finds  that, with respect to 
the product -specific import bans, Korea acted inconsistently with Annex B(1) and Article 7.  
7.477.   With respect to the blanket import ban, Japan has provided the Panel with the press 
release announcing this measu re1356, along with an MFDS doc ument1357, that Korea has confirmed 
contains the administrative instructions sent to the relevant enforcement agencies after the 
announcement of the measure in the press release.1358 The press release announces that:  
Through a meeting of related ministers* chair ed by Prime Minister Chung Hong Won 
on September 5 and a consultation between the ruling party and the government 
which took place on September 6, the government decided on a special measure to 
ban the import of all fishery produ cts from 8 ken near Fukushi ma. 
*The Ministry of Foreign Affairs, the Ministry of Safety and Public Administration, the 
Ministry of Oceans and Fisheries, the Ministry of Agriculture, Food, and Rural Affairs, 
the Ministry of Food and Drug Safety, and the Nuc lear Safety and Security 
Commission1359 
7.478.   The press release also mentions that the eight ken are Fukushima,  Ibara ki, Gunma, 
Miyagi, Iwate, Tochigi, Chiba and Aomori.1360 The figure below demonstrates the change from the 
product -specific bans to the blanket import ban.  
Figure 9: Evolution f rom product -specific ban to blanket import ban  
 
 
 
 
 
 
 
 
 
Source: PMO Blanket Import B an and Additional Testing Requirements Press Release , (Exhibit JPN -3.b). 
 
                                                
1354 Korea's first written submission, para. 372. See also Japan's J une 2 014 Request to Korea's 
SPS Enquiry Point , (Exhibit JPN -31); Japan's SPS Enquiry Point Follow -Up Request to Korea's SPS Enquiry Point 
(13 November 2014), (Japan's SPS Enquiry Point follow -up request), (Exhibit JPN -54). 
1355 Product -Specific b an on Cod from Miyagi and Iwate , (Exhibit JPN -76.b); Product -Specific ban on 
35 Fishery Products from Fukushima , (Exhibit JPN -77.b);  Product -Specific ban on Cod from Aomori , 
(Exhibit  JPN-78.b); Product -Specific ban on Cod from Ibaraki , (Exhibit JPN -79.b).  
1356 PMO Blanket Im port Ban and Additional Testing Requirements Press Release, (Exhibit JPN -3.b). 
1357 MFDS notice for 2013 blanket import ban and additional testing requirements, (Exhibit JP N-75.b).  
1358 Korea's response to Panel question No. 130; response to Panel question No. 7 2. 
1359 PMO Blanket Import Ban and Additional Testing Requirements Press Release, (Exhibit JPN -3.b), p. 1.  
1360 PMO Blanket Import Ban and Additional Testing Requirements Pres s Release, (Exhibit JPN -3.b), p. 3.   Region  Existing   Tightened  
1 Fukushima  49 species including sand lance, cod, trout   
 
 
All fishery 
products  2 Ibara ki 10 species including croaker, cod, eel  
3 Gunma  2 species including trout  
4 Miyagi  9 species including bass, cod  
5 Iwate  6 species including bass, cod  
6 Tochigi  3 species including dace  
7 Chiba  2 species including crucian carp, carp  
8 Aomori  1 species (cod)    WT/DS495/R  
 
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  7.479.   The press release states that "all fishery products" are subject to the blanket import ban 
and also states the prefectures which the fishery products originate from that are affected  by the  
ban. It is undisputed that the press release announcing the blanket import ban contains the origin 
(the eight prefectures) and the conditions applicable to the products concerned (a complete import 
ban). However, the issue of the product scope is c onteste d between the parties.  
7.480.   Japan argues that the press release fails to specify the products covered because the exact 
scope of the phrase "all fishery products" is vague.1361 Korea maintains that its SPS regulations 
identify the products subject to the im port ban and additional testing requirements, and notes that 
Japan acknowledged that the product scope of the requirements was fully clarified in 2013. Korea 
also argues that,  rather than product scope, Japan 's complaint appears to be about the processing 
and preparation method, which is often not specified in SPS regulations.1362  
7.481.   The Panel  looked to the documentation surrounding the adoption of the measures to see 
whether the phrase "all fishery products"  was based on commonly used sources for defining terms  
in international trade in fishery or other aquatic products and as a result was suf ficient to acquaint 
Japan with the products that would be subject to the ban.  In this regard,  the Panel notes that the 
measures do not refer to either Chapter 3 of the Harm onized System (HS) nomenclature , which 
refers to "Fish and crustaceans, molluscs and  other aquatic invertebrates"  or to the OIE Aquatic 
Animal Health Code, which provides a common definition of "aquatic animals" . Without any 
reference in the measures to th e HS or other common sources of product terminology in 
international trade, neither Japan nor the Panel could simply assume the product coverage . Thus, 
the Panel focused its examination on the notification of the measure that Korea made to the WTO 
SPS Comm ittee on 16 September 2013 and the addendum to that notification made on 28 October 
2013. The content of the notification provides a more detailed definition of fishery products as:  
Fishery products: Aquatic animals and algae (including simply cut, heated,  dried or 
salted aquatic animals and algae which can be recognized original form wit hout use of 
additives, other materials and fermentation) being consumed as food.1363 
7.482.    The notification to the WTO provides more details on the product scope than the press 
release and includes products not included in Chapter 3 of the HS such as algae.  Simila rly, without 
a reference to a specific definition of "aquatic animals" such as equating it to "fishery products"  in 
the HS or to the definition in the Aquatic Animal Health  Code1364, Japanese exporters could lack 
clarity on whether "aquatic animals" is limite d to a more traditional understanding of fishery 
products or also extends to the products of such animals as whales, dolphins, porpoises, seals and 
sea lions.  
7.483.   Korea used a vague term in its measures rather than referring to common sources of 
definitions fo r the phrase "fishery products" , and then included in the scope of its measures , as 
described in its  notification to the WTO , products that would normally be considered in other 
categories. The refore, the  Panel is unable to conclude that the press release announcing the 
blanket import ban contained the product coverage of the measures. Because the press release did 
not include the products that would be subject to the ban se t forth in the measure, the Panel finds 
that Korea did not publish the full content of the regulation.   
7.484.   With respect to the accessibility of the press releases announcing the blanket import ban, 
the Panel  notes that Korea has provided links to two web addr esses to the Panel, one to a website 
run by the MFDS and one belonging to the Prime Minister 's Office.1365 When the address Korea 
provided for the MFDS website is entered in an internet browser, a blank page appears with a 
prompt in Korean.1366 
                                                
1361 Japan's first written submission, para. 166; seco nd written submission, para. 330.  
1362 Korea' second written submission, paras. 329 -330. 
1363 G/SPS/N/KOR/454/Add.1.  
1364 The OIE Aquatic Code defines aquatic animals as "all via ble life stages (including eggs and gametes) 
of fish, molluscs, crustaceans and amphibi ans originating from aquaculture establishments or from the wild. 
World Organisation for Animal Health, Aquatic Code glossary, available at: 
http://www.oie.int/index.php?id=171&L =0&htmfile=glossaire.htm  (accessed 4 July 2017).  
1365 Korea's response to Panel question No. 114.  
1366 When entered into google translate, the prompt is translated as: "the wr ong approach".   WT/DS495/R  
 
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  7.485.    The Prime Minist er's website contains the press release announcing the blanket import 
ban. Unfortunately, the Panel has  no way of knowing whether that web address was available on 
the day Korea announced the measures and what content was available on that day. Korea did n ot 
provide an archived version of the website from the date of release, nor did it explain how Japan 
would be aware that it to go to the Prime Minister 's website to find SPS measures relating to food 
imports, especially given that the Prime Minister is not  the authority that is directly in charge of 
regulating the items subject to the blanket import ban.1367 Therefore, the Panel finds that Japan 
has made a prima facie  case that Korea did not publish the measures in a manner so as to enable 
Japan to become acqu ainted with the challenged measures.  
7.486.   Korea also argues that the fact that Japan referred to the SPS mea sures in its request to 
Korea 's Enquiry Point is proof that Japan was acquainted with them. Japan expressly acknowledges 
that it was aware of the measure s and that the Korean Government made its SPS measures public 
through press releases .1368 In the Panel 's view, however, this does not rebut Japan 's prima facie  
case that Korea did not publish the measures in a manner so as to enable Japan to become 
acquainted  with them. The Panel is not of the view, that just because a Member is aware of a 
press release announ cing a measure , or the fact that a measure has been made public , is 
necessarily sufficient to comply with the obligation in Annex B(1). The publication m ust stand on 
its own.    
7.487.   In light of the above, with respect to the blanket import ban announced in the press 
release dated 6 September 20131369, the Panel finds that although the press release contained the 
origin (the eight prefectures) and applicable condit ions (import ban), it did not specify the 
products from the eight prefectures that would be subject to the ban. Thus, Korea did not publish 
the content of the regulation. Moreover, Korea did not publish the blanket import ban in such a 
manner as to enable Japan to become acquainted with the measure. Consequently, the Panel finds 
that, with respect to the bl anket import ban, Korea acted inconsistently with Annex B(1) and 
Article 7.  
7.10.2.2   Additional testing requirements  
7.488.   Japan argues that the press releases introduc ing Korea 's additional testing requirements 
fail to specify the caesium limit that triggers the additio nal testing, the additional radionuclides for 
which testing is required, the applicable rules of origin, where the additional testing should take 
place a nd the methodology or conditions for the testing (e.g., the limit of detection required for 
each radion uclide).1370 
7.489.   In response to Japan 's argument that the press releases did not indicate the location of the 
additional testing, Korea cites KFDA 's Instruction  of Changed Measure including Certificate of Food 
Imports Originated from Japan1371, a document that conce rns Korea 's 2011 testing requirements. 
This document states that the testing can be conducted by any Japanese government inspection 
institution, or any i nstitution authorized by the Japanese government.1372 However, later, Korea 
clarified, that this document was not published and was in fact an internal administrative 
instruction sent to enforcement agencies after the press release for the 2011 testing requir ements 
was announced.1373 With regard to the rules of origin and detection limits, Korea responds that 
Japan has not demonstrated that such information must be published as part of the SPS regulation 
pursuant to Annex B(1). Korea adds that Japan was provided information about the rules of origin 
and detection limits through notifications or bilateral meetings.1374 
7.490.   For its part, Korea refers to the Notice of Temporary Special Measure for Safety for Food 
Imported from Japan, issued in 2013, which states that the me asure applies to "other nuclides as 
                                                
1367 Korea's response to Panel question No. 114.  
1368 Korea's first written submission, para. 372. See also Japan's J une 2014 Request to Korea's 
SPS Enquiry Point, (Exhibit JPN -31) and Japan's SPS Enquiry Point follow -up request, (Exhibit JPN -54). 
1369 PMO Blanket Import Ban and Additional Testing Requirements Press Release, (Exhibit JPN -3.b). 
1370 Japan's second written submission, para. 331; first written submission, paras. 171 -177; opening 
statement at the first meeting of the Panel, para. 83.  
1371 KFDA 2011 Instruction on new certification requirements for Jap anese food, 
(Exhibit  KOR-40.b),  p. 6. 
1372 Korea's first written submission, paras. 37, 345, 381; response to Panel question No. 17.  
1373 Korea's responses to Panel question Nos. 72 and 130.  
1374 Korea's sec ond written submission, para. 336; first written submission, paras. 38 3-387.  WT/DS495/R  
 
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  specified by Codex Alimentarius Commission (Codex) regarding radiat ion level."1375 In Korea 's 
view, this is sufficient to specify the radionuclides for which additional testing is required. 
However, in response to a Panel q uestion asking Korea to provide the web address for each press 
release, Korea clarified that this docum ent was in fact an internal document sent to Korean 
Customs and concerned enforcement agencies, and was not published or otherwise publicly 
available.1376 
7.491.   The press release announcing the 2011 testing requirements states : 
… 
Existing import suspension on certain items (leafy vegetable such as spinach and leaf 
and stem vegetables) from 5 ken will be maintained. As for other foods from these 
regions and all food s from 8 neighboring ken, government certificates shall be 
required and the radiatio n inspections shall be conducted on all imported foods.  
The 13 ken are where the Japanese government has detected radioactive materials in 
spinach, etc.  
The government cert ificates must be issued after inspecting the iodine and cesium 
content. If iodine or  cesium is detected, an inspection certificate on strontium and 
plutonium etc. shall be required additionally.  
For foods produced and manufactured in other 34 ken, the subm ission of certificate of 
origin issued by the Japanese government (including prefect ural and municipal 
authorities) shall be required and the radiation inspection shall be conducted on all 
imported foods.  
Certificate of origin must contain details substant iating that the relevant agricultural 
and forest products and foods etc. were produc ed, manufactured, and processed in a 
region which is not contaminated by radioactive matter.  
Even if the certificate of origin is submitted, if iodine or cesium is detected  during the 
import inspection, additional certification regarding strontium etc. sha ll be 
required...1377 
7.492.   The press release itself does not refer to any Codex radionuclides other than strontium and 
plutonium and does not contain any reference to the tolerance  levels. Nevertheless, the 
administrative instructions issued to MFDS offices and Ko rean Customs indicates additional 
radionuclides as well as the Codex guideline levels for each. 1378 The more detailed administrative 
instructions confirm that the entire cont ent of the measure is not included in the press release. 
The press release does not refer to the levels of caesium or iodine that would trigger the additional 
testing, which specific radionuclides will be tested, nor the maximum levels for those radionucli des 
that would result in products being rejected. Therefore, the Panel concludes tha t Japan could not 
know the conditions applicable to its products based on this press release. Moreover, the Panel  
notes that Korea had to issue these additional instruction s to its own offices. If the press release 
was not sufficient to enable Korea 's own authorities to know the conditions applicable to Japan 's 
products, it would be unreasonable for this Panel to conclude that it was sufficient for Japan.  
Therefore, the Pane l conclude s that the press release announcing the 2011 additional testing 
requiremen ts does not include the entire content of the regulation.1379 
7.493.   For the 2013 additional testing requirements, the press release states:  
With regard to the Japanese fishery and/o r livestock products from regions other than 
8 ken near Fukushima, if even trace amo unts of caesium  are detected, the 
                                                
1375 MFDS notice for 2013 blanket import ban and additional testing requirements, (Exhibit JPN -75.b).  
1376 Korea's responses to Panel question Nos. 114 and 130.  
1377 KFDA 14 April 2011 Pre ss Release, (Exhibits JPN -55.b (revised)), (Exhibit KOR -72 (revised)),  p. 2. 
1378 KFDA 2011 Instruction on new certification requirements for Jap anese food, 
(Exhibit  KOR-40.b),  p. 6. 
1379 KFDA 14 April 2011 Press Release, (Exhibits JPN -55 (revised)), (Exhibit KO R-72 (revised)).   WT/DS495/R  
 
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  government will require the submission of test report regarding presence of other 
nuclides such as  plutonium and strontium. This will effe ctively and fundamentally 
block imports of fishery products that have been contamina ted with radiation, even if 
only slightly.1380  
7.494.   Specifically, the press release does not refer to the levels of caesium that would trigger the 
additional testing, which specif ic radionuclides will be tested, nor the maximum levels for those 
radionuclides that  would result in products being rejected. The press release does not provide 
information on the procedure and location of the testing required for the additional radionucli des. 
7.495.   The relevant portion of the administrative instructions for the 2013 testing re quirements, 
which Korea admits have not been published1381, is as follows:  
… 
With regard to the Japanese fishery (including livestock products) from regions other 
than regions  subject to import ban, if even trace amounts of caesium are detected, 
the government will require the submission of test certificate regarding presence of 
other nuclides such as plutonium and strontium.  
It will be required to submit additional test certif icate on other nuclides as specified by 
Codex Alimentarius Commission (Code x) regarding radiation level.  
A relevant importer will be required to submit additional test certificate on other 
nuclides provided by any inspection agency of the Japanese governme nt or any 
certified inspection institution acknowledged by the Japanese gov ernment.1382 
7.496.   A comparison between the press release and the internal administrative instructions 
confirms that the entire content of the measure is not included in the press release. T he non -public 
internal administrative instructions are the only document s that refer to the Codex standards for 
other radionuclides with respect to radiation level. They are also the only document to refer to the 
requirement that the testing be conducted b y a facility either run by or acknowledged by the 
Japanese Government.1383 Moreover, the Panel notes that Korea had to issue these additional 
instructions to its own offices. If the press release was not sufficient to enable Korea 's own 
authorities to know th e conditions applicable to Japan 's products, it would be unreasonable for t his 
Panel to conclude that it was sufficient for Japan. Therefore, the Panel  conclude s that the press 
release announcing the 2013 additional testing requirements does not include th e content of the 
regulation.1384 
7.497.   In addition to the missing content, Japan als o alleges that the press releases were not 
generally known and its ability to become acquainted with the measures was inhibited by the 
location of the websites where the measures we re posted. In particular, Japan argues that it 
should be able to easily fin d the press releases. With regard to the accessibility of the press 
release concerning the 2011 testing requirements, Korea has provided the Panel with a hyperlink 
to a website.1385 
7.498.    Unfortunately, the Panel has no way of knowing whether that web address was available 
on the day Korea announced the measures and what content was available on that day. Korea did 
not provide an archived version of the website from the appropriate time pe riod, nor did it explain 
how Japan would know to go to that website to find SPS measures relating to food imports. 
Therefore, the Panel finds that Japan has made a prima facie  case that Korea did not publish the 
measures in a manner so as to enable Japan t o become acquainted with the challenged measures.  
                                                
1380 PMO Blanket Import Ban and Additional Testing Requi rements Press Release, (Exhibit JPN -3.b), p. 1. 
(emphasis supplied)  
1381 Korea's responses to Panel question Nos. 114 and 130.  
1382 MFDS notice for 2013 blanket import ban and additional testi ng requirements, (Exhibit JPN -75.b).  
1383 MFDS notice for 2013 blanket im port ban and additional testing requirements, (Exhibit JPN -75.b).  
1384 PMO Blanket Import Ban and Additional Testing Requirements Press Release, (Exhibit JPN -3.b). 
1385 When the link is clicke d on, the browser gives a prompt, stating that the URL "does not exist  or the 
password does not match"; Korea's response to Panel question No. 114.   WT/DS495/R  
 
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  7.499.   Korea argues that the fact that Japan acknowledged having received these press releases 
from the Korean enquiry point means that Japan was acquainted with the measures at issue.1386 
We disagree with Korea that  receiving the press releases announcing the measures at issue is 
equivalent to Japan becoming acquainted with them. Moreover, the Panel does not believe that 
Japan 's ability to provide the Panel with the relevant information several years after the fact i s 
sufficient evidence to excuse Korea from its obligations under Annex B(1). Therefore, the Panel 
finds that the location of the press releases was another factor that prevented Japan from 
becoming acquainted with this measure.  
7.500.   The 2013 testing requirement s were announced in the same press release as the blanket 
import ban. With respect to the location of this press release, the Panel  refers back to its analysis 
in paragraph 7.473 , 7.474  and 7.475 above , and find that in addition to the content, the location 
of the press releases also prevented Japan from becoming acquainted with this measure.  
7.501.   In sum, for the 2011 press rele ase announcing the additional testing requirements the 
Panel  finds that it does not include content that is sufficient to enable Japan to know the conditions 
that would be applied to its goods. Thus, for the 2011 additional testing requirements, the Panel 
finds that Korea has acted inconsistently with Annex B(1) and Arti cle 7. Moreover, based on the 
information on the record, the measure was not posted in a location that would enable Japan to 
readily access the information that it does contain.  
7.502.   For the 201 3 press release announcing the additional testing requirements the Panel  finds 
that it does not include content that is sufficient to enable an interested Member to know the 
conditions that would be applied to its goods.  Therefore, the Panel finds that the  2013 additional 
testing requirements were not published in such a  manner as to enable interested Members to 
become acquainted with it. Thus, for the 2013 additional testing requirements, the Panel concludes 
that Korea has acted inconsistently with Annex B (1) and Article 7.  Moreover, the measure was not 
posted in a locat ion that would enable a Member to readily access the information that it does 
contain.  
7.10.2.3   Conclusion on Article 7 and Annex B(1)  
7.503.   According to the evidence on record and based on all the foregoi ng, the Panel concludes 
that Korea has acted inconsistently with A nnex B(1), and as a c onsequence Article 7 of the 
SPS Agreement, with respect to the following measures: the blanket import ban, the product -
specific import bans and both the 2011 and 2013 ad ditional testing requirements.  
7.10.3   Providing answers to all reasonabl e questions and relevant documents  
7.504.     Japan claims that Korea has acted inconsistently with Article 7 and paragraph 3 of Annex 
B to the SPS Agreement because its SPS Enquiry Point has failed to provide copies of the 
measures imposing the import bans and the  additional testing requirements, and has failed to 
respond fully to a number of questions posed by Japan.1387 For its request dated 24 Jun e 2014, 
Japan contends that Korea 's SPS Enquiry Point 's response was substantively inadequate and 
incomplete, and that n o response was provided to its second request dated 13 November 2014.1388  
7.505.   Korea argues that as Japan acknowledges receiving a response from Korea 's SPS Enquiry 
Point to its June 2014 request, Korea  has fulfilled its obligation under Annex B (3) by responding  
to Japan 's questions and requests for documents. According to Korea, Japan 's claim under B(3) 
solely rests on Korea 's failure to respond to its follow -up request on 13 November 2014, which 
Korea does not factually contest.  
7.506.   Korea argues that Annex B(3) is  framed in a general manner referring to the establishment 
of the enquiry point and to the responsibilities that must be given to it.1389 According to Korea the 
obligation imposed by Annex B(3)  requires that an enquiry point exist.1390 In Korea 's view, the 
manne r in which Annex B(3) is framed and the specific language used in the provision does not 
                                                
1386 Korea's first written submission, para. 372.  
1387 Japan's first written submission, para. 193.  
1388 Japan's seco nd written submission, para. 362.  
1389 Korea's second written submission,  para. 345.  
1390 Korea's second written submission, para. 341.   WT/DS495/R  
 
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  suggest that a WTO Member is liable and subject to potential suspension of concessions as a result 
of an individual instance in which that Member 's enquiry point does not provide answers to all 
reasonable questions or does not provide relevant documents that have been requested from 
it.1391 Thus, Korea contends that a single instance of no response by an enquiry point does not 
give rise to a violation of Annex B(3).1392  
7.507.   The Panel notes that according to the text of Annex B(3) Members must ensure the 
existence of one enquiry point which is responsible for providing answers to all reasonable 
questions and provide  relevant documents. The Panel also note s that correspondence with an 
enquiry point is an iterative process, and an enquiry point must not be held to the standard of 
perfection. Therefore, the incompleteness of a single answer or failure to provide a parti cular 
document as part of a response to a  request will not necessarily give rise to an inconsistency. 
However, failure to respond at all would result in an inconsisten cy with the obligation in 
Annex  B(3). That being said, the Panel  cannot agree with Korea that the obligation should be 
interpreted  as requiring the setting up of an enquiry point to respond to enquiries that fall within 
the specific subparagraphs (a) -(d), but at the same time not requiring that the enquiry point 
answer the specific questions o r supply the requested documents . Such an  approach is illogical.  
7.508.   The Panel 's understanding of the obligation is reinforced by reference to the context, and 
object and purpose of the provision. As noted by its relationship to Article 7 and its inclusion in 
Annex B, the object and purpose of Annex B(3) is to fulfil the transparency obligations in the 
SPS Agreement. Concluding that the drafters of the SPS Agreement would establish an obligation 
for Members to set up an enquiry point, endow it with responsibili ty, and then not require that the 
concomi tant benefit to interested Members of receiving the answers and documents be provided 
is, in our view, incongruous. Annex B(4) provides additional contextual support for this 
interpretation. Annex B(4) requires that  copies of documents requested by interes ted Members be 
supplied at the same price, apart from the cost of delivery, as they are supplied to nationals of the 
Member concerned. Annex B(4) in referencing the price of the documents, implies that the 
documents  will be provided. In light of the sequen ce of the Annex, it is not unreasonable to 
conclude that they are being provided by the enquiry point. 
7.509.   The Panel finds further context for its interpreta tion in paragraph 55 of the 
SPS Committee 's Recommended Transp arency P rocedures which recommend that en quiry p oints 
deliver documents "by the fastest means possible" in response to a request.1393 Similarly to 
Annex  B(4) the Recommended Transparency Procedures  express an expectation that documents 
will actually be delive red. Additionally, the Recommended Tr ansparency Procedures describe 
enquiry points as "an effective avenue for obtaining information regarding SPS systems and 
measures", and specify that an enquiry p oint "handles on a routine basis" enquiries and requests 
for documents.1394 
7.510.   Reading the terms of Anne x B(3) in their context, and in light of the object and purpose to 
provide transparency to interested Members, the Panel conclude s that compliance with 
Annex  B(3), and thus Article 7, is achieved not only through th e formality of creating an enquiry 
point, but also through the actual provision of information and answers to reasonable questions. 
Bearing this in mind, the Panel now turns to examine the specific requests to Korea 's SPS Enquiry 
Point and whether it compl ied with the obligations set forth i n Annex B(3).  
7.10.3.1   Japan 's 24 June 2014 request  
7.511.   Japan sent a request to Korea 's SPS Enquiry Point on 24 June 2014.1395 Korea 's 
SPS Enquiry Point responded two months later with several brief answers to Japan 's questions and 
                                                
1391 Korea's opening statement at the first meeting of the Panel, para. 146; second written submission, 
paras. 345 -346. 
1392 Korea's  first written submission, para. 394.  
1393 G/SPS/7/Rev.3, Recommended procedures for implementing the tran sparency obligations of the 
SPS Agreement (Article 7), 1 December 2008 (Recommended Transparency Procedures), para. 55.  
1394 Recommended Transparency Proced ures, paras. 52 -53. 
1395 Japan's June 2014 Request to Korea's SPS Enquiry Point, (Exhibit JPN -31).  WT/DS495/R  
 
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  with thousands of pages of documentatio n.1396 Japan 's questions and request for documents as 
well as Korea 's SPS  Enquiry Point 's answers are summarized in the table below.  
Table 21: Communication between Japan and Korea 's SPS Enquiry Point s 
# Questions  Response provided by Korea 's SPS 
Enquiry Point on 26 August 2014  
1. The standard and/or threshold levels for the other 
Codex radionuclides.    (unit: 
Bq/Kg)  
Radionuclides  Infant 
foods  Foods 
Other 
Than 
Infant 
Foods  
238Pu, 239Pu, 
240Pu, 241Am 1 10 
90Sr, 106Ru, 129I, 
235U 100 100 
35S, 60Co, 89Sr, 
103Ru, 144Ce, 
192Ir 1,000  1,000  
3H, 14C, 99Tc 1,000  10,000  
 
2. The inspection and testing requirements for the 
additional radionuclides  No response provided  
3. The certification requirements for the additional 
radionuc lides  "In regard to the indication of 
certificate with respect to each 
radionuclide, Japan can state the 
analytical result of each radionuclide 
by using the current way of 
certification."  
 Documents Requested   
4. legal documents that serve as the legal basis of its 
import bans and additional testing requirements  10,000 pages in Korean provided. 
According to Korea, these include:  
 
1. Food Sanitation Act (4 files)  
2. Enforcement Decree of the Food 
Sanitation Act (6 files)  
3. Enforcement Regulation of the F ood 
Sanitation Act (5 files)  
4. Agricultural and Fishery Product 
Quality Control Act (1 file)  
5. Enforcement Decree of the 
Agricultural and Fishery Product 
Quality Control (1 file)  
6. Enforcement Regulation of the 
Agricultural and Fishery Product 
Quality Control Act (1 file)  
7. The Standards and Specifications 
for Foods (5 files)  
8. Press Releases (10 files)  
 5. The legal instruments that impose the import bans and 
the additional testing requirements  
6. Any notices, guidelines or guidance issued to Korean 
agencies or importers, or foreign exporters, to help 
with the application and implementation of its import 
bans and additional testing requirements  
 
7.512.   Japan does not dispute that the first question in this request was answered by the Korea 's 
SPS Enquiry Point, but disagrees with Korea on whether the response of Korea 's SPS Enquiry Point 
to Japan 's first request is adequate to address the second and third questions1397, and whether the 
documents provided  are "relevant" to Japan 's request.  
7.513.   With regard to Japan's second question concerning the testing method and required level 
of detection for additional radionuclides, Japan asserts that Korea has not responded at all, while, 
Korea submits that the required information is in the documents provided by its SPS Enquiry Point. 
However, the Panel notes, and agrees with Japan, that  Korea 's SPS Enquiry Point failed to indicate 
                                                
1396 Response by Korea's SPS Enquiry Point , (Exhibit JPN -30). 
1397 These two questions concern: (1) the "current way of certification" referred to by Korea in its 
response and (2) the testing method and required level  of detection for each additional radionuclide.   WT/DS495/R  
 
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  to Japan that the answer was in the accompanying documentation nor did it identify which 
documents contained the answer.1398  
7.514.   With respect to Japan 's third question regarding the manner in which certificates should be 
issued, Korea has stated that, for the test certifications for the additional radionuclides, Japan 
could use the "current way of certification".1399 To explain its response , Korea points t o a mutually 
agreed upon format for caesium certificates that was instituted in 2011 up until the additional 
testing requirements were put in place in 2013.1400 Japan states that it was aware of the 
certification method for caesium, but argues  that Korea 's response that Japan could use the 
"current way of certification" was of little use in the context of certification for the additional 
radionuclides.1401 Korea, for its part, asserts that it should have been natural for the Japanese 
government an d exporters to u nderstand "the current way of certification" as "the current way of 
certification for iodine and caesium."1402 Korea notes that Japan had issued certificates to comply 
with the additional testing requirements in 3,937 cases during 2011 and 201 2, before the 20 13 
temporary special measures were adopted.1403  
7.515.   As to its request for documentation, Japan does not contend that the documents provided 
are definitively irrelevant, but rather that it has no way of knowing whether they are because 
Korea has n ot identified wh ich documents are responsive to Japan 's requests.1404  
7.516.   The Panel recognizes that the response of Korea 's SPS Enquiry Point was not complete nor 
was it done in a manner which would easily enable Japan to relate the documents provided to their 
relevance for the  questions Japan had posed. At the same time, the Panel also notes that Korea 's 
SPS Enquiry Point did  provide a response  to Japan 's questions as well as produced voluminous  
documents relating to Japan 's request . In light of the efforts made  by Korea 's SPS Enquiry Point, 
the Pa nel finds that Japan has not demonstrated that this response on its own rises to the level of 
an inconsistency with Annex B(3).  
7.10.3.2   Japan 's 13 November 2014 request  
7.517.   Japan made an additional request to Korea 's SPS Enquiry Po int on 13 Novemb er 2014. 
Korea 's SPS Enquiry Point did not respond to this request. Korea does not dispute this but rather  
seeks to justify Korea 's SPS Enquiry Point 's failure to respond.1405 In particular, Korea argues that 
the Korean Government was waiting for the conclusi ons of a so -called Korean/ Civilian Expert 
Group1406 whose activities included reviewing materials provided by Japan, conducting on -site 
visits to Japan, as well as conducting analyses of the samples of fish and sea water collected in 
                                                
1398 Japan's response to Panel question No. 18; Response by Korea's SPS Enquiry Point , 
(Exhibit  JPN-30), p. 1. 
1399 See Response by Korea's SPS Enquiry Point , (Exh ibit JPN -30).   
1400 Korea's response to Panel questio n No. 21, where Korea cites: Korea Food & Drug Administration, 
"Response to questionnaire regarding import regulation on foods produced from J apan" (28 April 2011), 
(Exhibit  KOR-77), p. 2, and "Declaration  No. JS1312KR0519 for the import into the Republic of Korea of Food 
from Japan," (4 June 2012), (Exhibit KOR -131).  
1401 Japan's responses to Panel question Nos. 82 and 90.  
1402 Korea's second written submission, paras. 353 -354. 
1403 Korea's second written submission, paras. 353 -354. 
1404 Japan's response to Panel ques tion No. 90.  
1405 See Korea's response to Panel question No. 86(b).  
1406 In December 2014 and January 2015 Japan received, at Korea's request, on -site visits by a civilian 
group o f Korean technical experts. Japan understood that this group was established in Sep tember 2014 to 
help the Korean Government review the measures in place. The group's visits to Japan included meetings with 
government agencies as well as visits to fisheries  landing ports and wholesale markets in affected prefectures. 
They also visited res earch and testing institutions and the FDNPP. See Japan's f irst written submission, 
paras.  102-103. The group's activities also included conducting analyses of samples of fi sh and sea water that 
it collected during its visits to Japan. Korea has argued tha t this group should properly be called a "Civilian 
Expert Group" because it was an ad hoc  group of scholars, radiation specialists, nuclear experts, medical 
doctors, and mem bers of NGOs that this group did not have a legal basis for its establishment under  Korean 
law and neither represented nor was funded by the Korean Government. The Civilian Expert Group suspended 
its activities in June 2015 and did not publish its final re port. The records from their visits to Japan can be 
found in: J. Yoon, On -site Visi t Report for Radiation Safety Management for Foods in Japan by Civ ilian Expert 
Group (19  December  2014), (Exhibit KOR -148); J. Lee, Second On -site visit report for Radiation  Safety 
Management in Japan by Civilian Expert Group (17 January 2015), (Exhibit KO R- 149); J. Yoon, On -site Visit 
about Inhabiting Environment Report for Radiation Safety Management in Japan by Civilian Expert Group 
(6 February 2015), (Exhibit KOR -150).   WT/DS495/R  
 
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  Japan.1407 Korea explains th at this Korean/ Civilian Expert Group suspended its work when Japan 
requested consultations with Korea in this dispute.1408 It further adds that Japan 's request was 
discussed between the two parties in a bilateral meeting in March 2015.1409 
7.518.   Firstly, the Panel is of the view that other bilateral avenues of communication cannot 
replace or excuse compliance with Annex B(3). Secondly, the Panel  notes that Korea – in certain 
portions of its submissions – contests that the Korean/ Civilian Expert Gr oup is even related to  the 
Government and that its work has no bearing on Korea 's compliance with its obligations.1410 
Moreover, the Korea 's SPS  Enquiry Point never informed Japan that its reply would be delayed 
because it was awaiting the results of the Korean/Civilian Expert Gro up's work. Instead, Korea 's 
SPS Enquiry Point  simply ceased communicating with Japan. Thus, the Panel does not find this 
explanation availing. The Panel also does not agree with Korea that once consultations in this 
dispute had begun it no longer had an ob ligation to answer Japan 's request. The beginning of 
dispute settlement procedures, particularly the consultations phase, does not require the freezing 
of the status quo and should not excuse non -compliance with obligations. Indeed, o ne way to 
avoid moving  forward in the dispute settlement process is for a Member to comply with its 
WTO obligations.  
7.519.   Although the initial response in August 2014 was not sufficient on its own to establish an 
inconsistency with Annex B(3), because Korea 's SPS Enquiry Point simpl y did not respond at all to 
Japan 's second query, the Panel concludes that Korea 's SPS Enquiry Point did not comply with the 
obligation in Annex B(3).  
7.10.3.3   Conclusion on Article 7 and Annex B(3)  
7.520.   The Panel  reiterate s that according to Anne x B(3), the SPS enquiry point is responsible to 
provide answers to all reasonable questions and provide relevant documents. Compliance with 
Annex B(3) and Article 7 is achieved not only through the formality of creating an enquiry point , 
but also through p roviding answers to re asonable questions and the provision of relevant 
documents. That being said, the Panel also recognizes that correspondence between an enquiry 
point and an interested Member is an iterative process. Hence, the incompleteness of an answ er or 
a failure to pro vide a particular document within a response is not necessarily enough to establish 
an inconsistency with Annex B(3). For example, in the context of this dispute, if the Panel were 
examining Korea 's SPS Enquiry Point 's response to Jap an's first request in isolation, there would 
be insufficient evidence to establish an inconsistency. However, the Panel finds that  based on both  
Korea 's SPS Enquiry Point 's failure to respond at all to Japan 's follow -up query  and  its earlier 
failure  to relate the answers and d ocuments provided to their relevance for the questions Japan 
had posed , Japan has  establish ed that Korea acted inconsistently  with the obligation in 
Annex  B(3), and as a consequence Article 7 of the SPS Agre ement . 
8  FINDINGS AND RECOMME NDATION(S)  
8.1.  The panel f inds that Korea 's measures – the 2011 additional testing requirements, the 2012 
product -specific import bans on Alaska pollock and Pacific cod from five prefectures, the 2013 
additional testing requirements, and the 2013 blanket import ban – are SPS measur es within the 
meaning of Article 1.1 and Annex A(1)(b) of the SPS Agreement and thus, are subject to the 
obligations therein. Furthermore, the Panel finds that the measures do not fulfil the fou r 
requirements in Article 5.7.  The Panel has made the followin g findings on  Japan 's specific requests . 
8.2.  With respect to the obligation not to establish or maintain SPS measures in a manner that is 
more trade -restrictive than required to achieve their approp riate level of protection:  
a. Korea 's 2011 additional testing req uirements and 2012 product -specific import bans 
were not more trade -restrictive than required when adopted.  
b. The Panel finds that, at the time of the establishment of the Panel, the 2011 additio nal 
testing requirements and 2012 product -specific import bans  were maintained in a 
                                                
1407 Korea's response to Panel question No. 11.  
1408 Korea's response to Panel question No . 11. 
1409 Korea's response to Panel question No. 86(b).  
1410 Korea's response to Panel question No. 11.   WT/DS495/R  
 
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  manner inconsistent with Article 5.6 of th e SPS Agreement because they were  more 
trade -restrictive than required.  
c. The Panel finds that the 2013 additional testing requireme nts were adopted and 
maintained in a manner inconsistent with Article 5.6 of the SPS Agreement because they 
were and are more trade -restrictive than required.  
d. The Panel finds that the blanket import ban (with the exception of the ban on Pacific cod 
origin ating from Fukushima and Ibaraki) was adopted in a manner inco nsistent with 
Article 5.6 of the SPS Agreement because it was more trade -restrictive than required.  
e. The Pane l finds that the  blanket import ban with respect to all 28 fishery products  from 
all 8 prefectures is maintained in a manner inconsistent with Arti cle 5.6 of the 
SPS Agreement because it is more trade -restrictive than required.  
8.3.  With respect to the basic obligation  in Article 2.3 for M embers to ensure that their 
SPS measures do not arbitrari ly or unjustifiably discriminate between Members where identic al or 
similar conditions prevail and to not apply SPS measures in a manner which would constitute a 
disguised restriction on international trade:   
a. The Panel finds that the 2013 additional testin g requirements and the blanket import ban 
with respect to the 27 fishery products  subject to Japan 's claim from the 8 prefectures 
and Pacific cod from 6 prefectures, i.e. excluding Pacific cod from Fukushima and 
Ibaraki, were inconsistent with Article 2.3 , first sentence  of the SPS Agreement  and, as a 
consequence, wi th Article 2.3, second sentence, when Korea adopted them . 
b. The Panel finds that, by maintaining the product -specific and blanket import bans on the 
28 fishery products from the 8 prefectures and the 2011 and 2013 additional testing 
requirements on Japanese products, Korea acted inconsistently with Article 2.3 , first 
sentence  of the SPS Agreement  and, as a consequence with Article 2.3, second 
sentence . 
c. The Panel exercises judicial economy with rega rd to the other grounds raised by Japan 
for inconsistency of K orea's measures with Article 2.3, second sentence.  
8.4.  With respect to the obligations in Article 8 and Annex C with respect to the operation of 
control, insp ection and approval procedures, t he Panel finds that Japan has failed to establish that 
Korea acted in consistently with the provisions of Annex C(1), subparagraphs (a), (c), (e) and (g) 
and, as a consequence, with Article 8 of the SPS Agreement in respect of the adoption and 
maintenance of the 2011 and the 2013 additional testing requirements.  
8.5.  With respect  to the transparency obligations in Article 7 and Annex B:  
a. The Panel finds that Korea has acted inconsistently with Annex B(1), and as a 
consequence Article 7 of the SPS Agre ement, with respect to the publication of all of the 
challenged measures.  
b. The Pane l finds that Korea 's SPS Enquiry Point 's failure to respond a t all to Japan 's 
follow -up request  in conjunction with its earlier failure, is sufficient to establish that 
Korea  acted inconsistently with the obligation in Annex B(3) and as a consequence 
Article 7 of the SPS Agreement.  
8.6.  Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations 
assumed under a covered agreement, the action is considere d prima facie  to constitute a case of 
nullification or impairment. The Panel finds  that, to the extent that the measures at issue are 
inconsistent with Articles 5.6, 2.3, 7 and Annex B(1) and B(3) of the SPS Agreement, they have 
nullified or impaired benef its accruing to Japan under that agreement.  
8.7.  Pursuant to Article 19.1 of the DSU, the Panel  recommend s that Korea bring its measure s 
into conformity with its obligations under the SPS Agreement.  
__________