KOREA – IMPORT BANS, AND TESTING AND CERTIFICATION REQUIREMENTS FOR RADIONUCLIDES REPORT OF THE PANEL
Document: REPORT OF THE PANEL
Date: 22 February 2018
Document codes: WT/DS495/R
Complainant: Japan
Respondent: South Korea
Third parties: U.S., EU, Norway, New Zealand, India, Russia, Taiwan, China, Guatemala, Canada, Brazil
Dispute stage: Appellate Body
Agreements cited: Art. 7, Annex B, 5.8, 2.3, 5.5, 5.6, 8, Annex C  Sanitary and Phytosanitary Measures (SPS)Art. XXIII:1  GATT 1994

KOREA – IMPORT BANS, AND TESTING AND CERTIFICATION
REQUIREMENTS FOR RADIONUCLIDES
REPORT OF THE PANEL

LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF 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 PARTIES
Contents 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 arguments 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 Executive 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 RULINGS MADE BY THE PANEL
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

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, 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, and Corr.1, adopted 16
February 2001, DSR 2001:V, p. 1779
Argentina – Import Measures Panel Reports, Argentina – Measures Affecting the Importation of Goods,
 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 upheld
(WT/DS444/R / WT/DS445/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 Importation 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 WT/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 Imports of Retreaded
Tyres, WT/DS332/AB/R, adopted 17 December 2007, DSR 2007: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 Report, Canada – Certain Measures Affecting the Automotive Industry,
WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by Appellate
Body Report WT/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 Affecting 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 Importation 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 Measures 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 Appellate 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, DSR 2006:XII, p. 5473)

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 Property
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. 2097
China – Publications and
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 and 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 2001: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 – Bananas 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/GTM, WT/DS27/R/HND, adopted 25 September 1997, as
modified by Appellate Body 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 Imports 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 2003: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

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 Concerning Meat and Meat Products (Hormones),
Complaint by Canada, WT/DS48/R/CAN, adopted 13 February 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 1998: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. 365
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 June 2011, as
modified by Appellate Body Report, WT/DS316/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 Foodstuffs,
WT/DS290/R (Australia) / WT/DS174/R (US), adopted 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 Appellate Body Report, India – Measures Concerning the Importation 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 Report 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 2002, DSR 2002:V,
p. 1827

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,
adopted 19 March 1999, as modified by Appellate 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/DS245/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 Vessels Panel Report, Korea – Measures Affecting 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 Other
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/DS396/AB/R / WT/DS403/AB/R, DSR 2012:VIII, p. 4271
Russia – Pigs (EU) Panel Report, Russian Federation – 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

Thailand – Cigarettes
(Philippines)
Appellate Body Report, Thailand – Customs and Fiscal Measures on
Cigarettes from the Philippines, 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 Other 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

Short title Full case title and citation
US – Continued Suspension 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 Report, 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 Report, 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 Treatment for "Foreign Sales
Corporations", WT/DS108/AB/R, adopted 20 March 2000, 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 Reformulated 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
complaint)
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. 649
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 Appellate 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 Report, United States – Investigation of the International
Trade Commission in Softwood Lumber from Canada – Recourse to Article
21.5 of the DSU by Canada, WT/DS277/AB/RW, adopted 9 May 2006, 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 States – Restrictions on Imports of Cotton and
Man-made Fibre Underwear, WT/DS24/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/DS24/AB/R, DSR 1997:I, p. 31
US – Upland Cotton Appellate Body Report, United States – Subsidies 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

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

EXHIBITS FREQUENTLY REFERRED TO IN THIS 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 Accident" (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,
"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 March 2016)
JPN-24 WHO Fact sheet on
ionizing radiation
World Health Organization, "Ionizing radiation, health effects
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 Commission, "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 Foods
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 2015)
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 Ministry 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 Products from
Fukushima
Korea's Ministry of Food, Agriculture, Forestry and Fisheries,
Press Release, "Temporary Import Suspension on 35 Fishery
Products, including Yellowfish from Fukushima-ken, Japan"
(26 June 2012)
JPN-78.b Product-Specific ban on
Cod from Aomori
Korea's Ministry of Food, Agriculture, Forestry and Fisheries,
Press Release, "Temporary 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
translation.

Exhibit
No.
Short title Title
JPN-127 MAFF strontium inspection
results (April 2011-June
2016)
Japan's Ministry of Agriculture, Forestry and Fisheries,
"Inspection Results 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/housyanou/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 Agricultural Products
Data (milk)
Japan's Ministry 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, Forestry 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 scientific 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, Forestry and Fisheries,
"Overview of food monitoring results" (April 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 Products" (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 Effects 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 Japan's food monitoring data submitted to the
Panel
JPN-278 Implementation Guides on
Sea Area Monitoring
(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.pdf, (last viewed 1 March 2017)
KOR-1, ICRP-3 ICRP Publication 103:
2007 Recommendations
ICRP, "The 2007 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 monitoring
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 Radiological 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 Instruction on
new certification
Korea Food & Drug Administration, "Instruction of Changed
Measure including Certificate of Food Imports Originated

Exhibit
No.
Short title Title
requirements for Japanese
food
from Japan" (15 April 2011)
KOR-43 Bloomberg: TEPCO
President Apologizes for
Fukushima 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 (2012), 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 Management
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 Korea'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 Management
KOR-283 Results of Further Sr and Pu Analysis of the Samples at the
Point-of-Sale

ABBREVIATIONS USED IN 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 Hectare
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 Radioprotection 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 Economy, 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 replaced 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 Commission 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 Phytosanitary Measures
Sv Sievert
TBq Terabecquerel
TBT Agreement Agreement on Technical Barriers to Trade
TEPCO Tokyo Electric Power Company

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 RADIONUCLIDES
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 unstable nuclei. They are positively charged particles moving at
high speeds. Examples of alpha emitters are uranium-235, plutonium-238,
plutonium-239, plutonium-240, and americium-241.
Atom

The smallest constituent unit of ordinary matter that has the properties 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 in 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 proportion 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) and 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.

Scientific Term Explanation
causing cancer
Carcinogenic Capable of causing cancer
Clastogenic factors The disruption of chromosomes in un-irradiated 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 fission 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 deterministic 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 are inadvertently present in food, 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 emitted 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, cobalt-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 action 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 "protective 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 can 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 protons) 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 share the same
number of protons (94), their numbers of neutrons differ (145 and 146
respectively).
Kuroshio current A northward flowing ocean current on the western side of the North Pacific Ocean

Scientific Term Explanation
Level of radioactivity
per kg of food
("Bq/kg")
To ensure 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 separate thresholds for the level 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 testing 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 category.
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 made of one or more protons and typically a similar number of
neutrons.
Nuclide An atomic species characterized by the specific constitution of its nucleus, i.e., by
its number of protons, its number of neutrons, and its nuclear energy state
Neutron A subatomic 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 current 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 particular, 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 charge 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 of ionizing radiation in the form of
alpha or beta particles or gamma rays
Radioactive isotopes Nuclide that is radioactive. Same as "radionuclide" 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 radioactive
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 radionuclides
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

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 increases 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 by 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 these 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

1 INTRODUCTION
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/DS495/3, in accordance 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/DS495/3 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, Chinese 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 Consultations with the Experts7 and timetable on 24 February 2016.8
1.9. The Panel received written submissions from both parties and sent advance questions 9 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 WT/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.

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 comments. 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 and 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
enquiring 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 DSB 16 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 submitted on 14 March 2016 while Korea submitted its first
written submission on 25 April 2016. 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 Panel 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 parties, 1 September 2017.
17 Letter from the Panel to the parties, 26 September 2017 (citing WT/L/452). See WT/DS495/7.

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 parties".
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 obligations 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 granted 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 Panel 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 Report,
EC and certain member States – Large Civil Aircraft, para. 7.166.
25 The Panel's consultation with experts was also carried out pursuant to the Panel's authority under
Article 13 of the DSU.

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), and 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
naturally 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 May 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 parties,
6 June 2016. Letter from the Panel to the parties, 15 July 2016.
31 For further information on the organizations that UNSCEAR liaises with see
http://www.unscear.org/unscear/en/media/links.html.

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 identified 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 environments. 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 Panel 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 2017, 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.

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 BROWN 38 , Professor Rolf MICHEL 39 , Dr Lavrans SKUTERUD 40 , and
Dr Patsy THOMPSON 41. Each of the selected experts had expertise in at least two of the areas
identified 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 implications 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-production 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 protection 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, Professor Michel was
responsible for radiation protection auditing at Hannover University. Among other things, from 1999 – 2006
and 2008-2016 Professor Michel was a member of the German Commission on Radiological Protection (SSK).
From 2012-2016, he was chairman. 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 internationally.
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 energy 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 Canadian 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 Committee.
42 Korea's communications to the Panel, 2 May 2016 and 7 July 2016.

scientific 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 health 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 experts 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 technical 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 redactions 46, 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 Panel 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 arguments 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
organizations 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 Panel to the parties, 7 September 2016.
46 See parties' comments on the redacting of submissions, 14 September 2016.
47 Annex D-3.

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 experts 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 sent 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 forms 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 also occur as a consequence of nuclear weapons usage or testing or following
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 ingestion). 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 present 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. The Panel 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 radiation, health effects and protective 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 question Nos. 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.

radionuclides may become incorporated into plants an d animals 52 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 material 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), ruthenium (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). Exposure 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 to 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
radionuclide 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 Panel question No. 2 to the experts.
53 WHO/FAO International 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 experts'.
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 decay 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 (petabecquerel, 1015 Bq).
56 Dr Thompson's response to Panel question No. 35 to the experts.

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), plutonium (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 from Japan's SPS Enquiry Point
(26 August 2014) (Response by Korea's SPS Enquiry Point) (Exhibit JPN-30). This communication was in
response to the communication from 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)
(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: Individual
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 Coefficients",
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 isotopes 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/releases/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).

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 mSv 71; by contrast the
dose threshold for acute radiation syndrome (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 exposed 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 affected 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-threshold (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: Assessing 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.

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 Half-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)).

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 188 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 "Guideline 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 (18 th
Session of the Codex Alimentarius Commission ). The Codex Radionuclide GLs were elaborated by

77 Specifically, Annex A(3)(a) states "for food safety, the standards, 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 FAO/IAEA
Joint Division of
Nuclear Techniques
in Food and
Agriculture

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 Standard 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 comprises 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 destined 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 radionuclides 81, 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 radionuclides 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 GLs 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, (Exhibit 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 STAN 193-1995, (Exhibit JPN-32), p. 40.
85 Codex recognizes 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
guideline 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.

Table 2: Guideline levels 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 regulation 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 GLs for all radionuclides
except as indicated in the table 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 submission, para. 234; Response by Korea's SPS Enquiry Point, (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.

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 or radiological emergency 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 application. 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 between 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
implementation 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

91 CODEX STAN 193-1995, (Exhibit 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), (Exhibit KOR-178).
97 Codex committee on 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).

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 organizations 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
UNSCEAR documents constitute major sources of information for governments and organizations;
for e xample, the ICRP (see section 2.3.3) relies heavily on the scientific data collected in the
UNSCEAR reports to develop its own recommendations on radiological 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 e xample 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
radiological 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
Contaminants 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
radiation exposure due to the nuclear accident, ("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 Earthquake 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 Tsunami (2016).
104 Both reports and subsequent updates are available at:
http://www.unscear.org/unscear/en/publications.html
105 See website of the International Atomic Energy Agency (IAEA Website), IAEA Safety Glossary
Terminology Used in Nuclear Safety and Radiation Protection, 2016 Revision, https://www-
ns.iaea.org/downloads/standards/glossary/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).

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 establishing its recommendations, the ICRP uses the
data from the UNSCEAR reports (see section 2.3.2) and works closely with many other
organizations 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
contained 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 Agency (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 with the FAO. The IAEA also plays a proactive role in ensuring
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 the 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 -laboratory 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 evaluation 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 to 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 Recommendations),
(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 publications
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/almera/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).

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 three containment vessels in these units. Hydrogen was released 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 Ministry 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 written 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 KOR-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 product-specific distribution restrictions in
Japan remain in place and can be found at
http://www.mhlw.go.jp/english/topics/2011eq/index_food_press.html; Japan's response to Panel question
No. 28.

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) and 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 reactor.
Figure 2: Layout of Fukushima Daiichi Nuclear Power Plant

Source: International Atomic Energy Agency, "The Fukushima Daiichi Accident - Technical Volume 1 –
Description and Context of the Accident" (August 2015) ("2015 IAEA DG Report, Technical Volume 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.

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 17.5 PBq of Cs-134 and 15 Pbq of Cs-137 were 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., "Fukushima 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 Accident: Radioactivity Impact on the
Environment (2013), (Elsevier, 2013), (Exhibit KOR-97), p. ix.
130 Buesseler et al. (2016), (Exhibit KOR-134), p. 6.

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 and 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 release 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 Safety Agency, Table 5: Estimates of the Amount (Bq) of Radioactive
Materials Released into the Atmosphere 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. 9584-9595, (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).

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 fission 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 significant 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 radionuclide 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 water 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 ocalized, 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 conclusion 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 Report Technical Volume 1,
(Exhibit JPN-7), p. 149.
142 2015 IAEA DG Report Technical 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, (Exhibit 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.

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 the 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 Ocean from
the FDNPP site moved eastward with the Kuroshio current 155 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. Studies 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 forests 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, "The Implications of The Massive
Contamination of Japan with Radioactive Cesium" (2013),
http://www.ratical.org/radiation/Fukushima/StevenStarr.html, (Exhibit KOR-29).
155 The Kuroshio current is a northward flowing ocean current on the western side of the North 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", Environmental 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. Wakahara, Y. Igarashi, Y. Matsuura, K. Yoshimura,
"Initial Flux of Sediment-Associated Radiocesium to the Ocean from the Largest River Impacted by Fukushima
Daiichi Nuclear Power 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 2013 Typhoons", Scientific
Reports, 3 April 2014, (Exhibit KOR-184).

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 cites 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 continuously 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 29 September 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 leakage 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 removal 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)) Environmental Science &
Technology, Vol. 50, No. 1, (Exhibit KOR-49),TEPCO, "Current Strategy to Respond to the Phenomenon of
Ground Water Contamination: The Flow of Groundwater around Units 1-4", 8 August 2013, (Exhibit KOR-106),
p.18.
171 Castrillejo et al. (2016), (Exhibit KOR-49), pp. 173-180.

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 as 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 response to Korea's arguments in its first written submission),
(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 Japan 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 radionuclides 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.

Table 3: Result of the nuclide analysis of the retained water in the PCV in Units 2 and 3
Result (1) of the nuclide 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
(Approx. 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 response 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 regimes. 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 relevant 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 Report), (Exhibit JPN-43), pp. 11, 46.

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 radionuclide 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. 11; 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 Welfare, 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 2012) (Report of Japan's Committee on Radionuclides in Foods),
(Exhibit JPN-40.b), pp. 3-4.
182 Japan Ministry of Health, Labour and Welfare, 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 Cancellation of Items and Areas to which Restriction on
Distribution and/or Consumption of Foods concerned Applies' (Developed by the 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.

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 a nd 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 consumption 192, the distribution of certain
foods in specific areas 193 , 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 milk 195 , in line with national guidelines that were developed by the NERH. These were
continuously revised, most recently 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 multiple 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 time 200,
some restrictions 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 of its import ban-related claims 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 vegetables (e.g. spinach, komatsuna), (ii) head-type
leafy vegetables, (iii) Flowerhead brassicas (e.g. broccoli, cauliflower), (i v) Turnip, (v)

187 Report of the Committee 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. 12.
192 2015 IAEA DG Report, (Exhibit JPN-2), p. 89.
193 2015 IAEA DG Report, (Exhibit JPN-2), p. 89.
194 2015 IAEA DG Report, (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 which 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 of Inspection Planning and Items and Areas to which Restrictions of Distribution
and/or Consumption of foods applies, (Exhibit JPN-42.b), p. 10; FAJ Monitoring Report, (Exhibit JPN-43),
pp. 20-21.
200 See section 2.7; 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), ("Japan
MHLW Internal Distribution Restrictions on Food"), (Exhibit JPN-48).
201 See Japan's domestic restrictions 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).

Mushrooms ( log-grown shiitake (outdoor and indoor cultivation), log-grown pholiota
nameko (outdoor cultivation), and wild mushrooms ), (v i) Bamboo shoots, (vi i) Other
vegetables (hatakewasabi, wild aralia cordata, ostrich fern, wild ostrich fern, koshiabura,
Japanese royal fern, wild Japanese 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, Starspotted
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 restrictions 205 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, "Levels 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 radioactivity 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 Health,
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
Database 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 Atomic 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, (Exhibit JPN-278).
208 The environmental radioactivity 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.

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 s 213 ; 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 detection, 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 amount 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, Chub mackerel, Conger eel, Sakura shrimp,

210 Japan's response to Panel question No. 7. Japan explains that the 17 prefectures are Aomori, Iwate,
Akita, Miyagi, Yamagata, Fukushima, Ibaraki, Tochigi, Gunma, Chiba, Saitama, Tokyo, Kanagawa, Niigata,
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 and Areas to
which Restriction 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 which Restriction on Distribution 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 Restriction on Distribution and/or Consumption of
foods applies, (Exhibit JPN-42.b), p. 8.
215 Japan Ministry of Health, Labour and Welfare, "Testing Methods for Radioactive Substances in Food"
(15 March 2012), (Exhibit JPN-44.b).
216 Japan's second written submission, 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 monitoring
results" (April 2012 – 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 Ministry 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 Agriculture, Forestry and Fisheries,
"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 prefectures)"(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.

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 species that humans ordinarily consume.224
2.79. Japan adopted a Sea Area Monitoring plan in October 2011, which was further modified in
2012. 225 Japan 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 Aomori, 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 of 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 Report (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 submission, para. 70.
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, Fukushima 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 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).
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 Sea Area Monitoring (2016), (Exhibit JPN-278), p. 2.
231 Implementation Guides on Sea Area Monitoring (2016), (Exhibit JPN-278), pp. 2-9.

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 as 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 sampling 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 mouth of the FDNPP port are made 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 accident
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 Monitoring (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, (Exhibit 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_08Policy00GovernmentResponsetoFukushimaAccident.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) began administering the measures in March 2013. MIFAFF was subsequently
succeeded by the Ministry of Agriculture, Food and Rural Affairs (MAFRA).
239 Korea Food and Drug Administration was succeeded in March 2013 by MFDS.

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 rements 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
livestock products 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 processed,
origin refers 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 and/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 prefectures.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 fishery and livestock products
between 14 May 2011 and 9 September 2013.
2.92. Initially, non-fishery products (except livestock) from 13 Japanese prefectures 245 were
required to be accompanied by a pre -export caesium and iodine testing certificate attesting 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 twice 248 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 Originated 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)), (Exhibit KOR-72 (revised)).
244 For Cs-134 and Cs-137, the level applied by Korea was 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 requirements 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 Inspection 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 decided 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

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 certificate 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 required 253, 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 2012 and two prefectures were added to the same list; Japan's and
Korea's responses to 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, Agriculture, 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 Release, (Exhibit JPN-55.b (revised)), (Exhibit KOR-72 (revised)). The
13 prefectures for which pre-export testing was originally required for fisheries products are: Miyagi,
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 prefectures 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 requirements and the
prefectures Kagoshima and Aichi were added. According to the information provided, 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 applied 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 subject 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 Safety for Food Imported from Japan" (6 September 2013) (English translation), ("MFDS notice for 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 response to Panel question No. 111(c).
254 Korea's comments on Japan's response to Panel question No. 111(c).
255 During the second meeting, Korea indicated that for certain commodities (mushrooms, blueberries)
from certain countries (Ukraine, Belarus, their neighbouring countries; and China), caesium is tested more
frequently at the Korean border than for most food imports from third sources. See 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 Food 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).

basis.257 A few days later 258 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 caesium 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 radionuclides
2.98. The third and last requirement 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 2011 263 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 Foods, 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 Panel questions after both the first and second meeting also assert this exception. In support 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 Administration, "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 stage" 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. 192.
261 Status of KFDA's Response and Management Measures Regarding the Japanese Nuclear Crisis (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 National Fishery Inspection Services, "Notification of Strengthened Inspection on Fishery
Products Originated from Japan" (4 May 2011), (Exhibit KOR-75).

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 Prime 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
agencies: 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 other 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 Requirements
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-idUSL4N0FZ31J20130731, (Exhibit KOR-42); 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).
266 MFDS notice for 2013 blanket 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).

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 2011 271 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 and 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 caesium in beverages is based on the WHO Guidelines 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 translation), (Exhibit JPN-170.b). As
noted previously, certain product-specific distribution restrictions in Japan remain in place and can be found at
http://www.mhlw.go.jp/english/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), (Exhibit 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 available in Japanese on the Ministry of Agriculture, Forestry and
Fisheries website: http://www.maff.go.jp/j/export/e_info/pdf/kisei_all_160718.pdf.
275 Japan's responses to Panel question Nos. 7and 28.
276 Aomori, Chiba, Fukushima, Gunma, Ibaraki, Iwate, Miyagi and Tochigi.

October 2012 and February 2015 (Table 6) following 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) Prefecture(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 based 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 2012), (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 Emergency Response Headquarters" (Lift, Alaska Pollock -
Fukushima) (17 December 2013) (English translation), (Exhibit JPN-125.b).
279 Korea Ministry of Food, Agriculture, Forestry and Fisheries, Press Release, "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 Preparedness, direction of Director-General of the Nuclear Emergency Response Headquarters
(22 June 2012), (Exhibit JPN-119.b).
281 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 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 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" (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 Headquarters" (31 October 2012),
(Exhibit JPN-122.b).
285 Korea Ministry of Food, Agriculture, Forestry and Fisheries, Press Release, "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, Press 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 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 Preparedness,
direction of Director-General of the Nuclear Emergency Response Headquarters" (17 January 2013),
(Exhibit JPN-118.b).
288 Korea Ministry of Food, Agriculture, Forestry and Fisheries, Press Release, "Temporary Import
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, Press 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 JPN-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 Headquarters" (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 Concerning Nuclear Emergency

2.7.7 Blanket import ban
2.107. In 2013, in a press release from Korea's Prime Minister's Office on 6 September 295, 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, Ibaraki and Chiba.
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 activities 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 recalls 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 subject of Japan's claims
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 prefectures
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 Emergency 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 Response 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 pollock from Fukushima prefecture was imposed
on 22 June 2012. Korea included Alaska pollock in the blanket import ban on eight prefectures on
9 September 2013.
297 The six coastal prefectures are Aomori, Iwate, Miyagi, Fukushima, Ibaraki and Chiba.
298 The eight 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 September 2013.

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 prefectures
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 prefectures
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
Southern 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 albacares) 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.

Figure 4: Current distribution 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 detected.
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.

2.115. Table 8 summarizes the challenged measures, the products and regions that they apply to,
and the date 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 caesium
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
Product-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 iodine
are detected
All fishery and livestock products All 47 prefectures 9 Sep 2013

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 imposition of Korea's measures

3 PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
3.1. Japan requests that 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 Article 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 into 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 PARTIES
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
undisclosed leaks
at FDNPP

5 ARGUMENTS OF THE THIRD PARTIES
5.1. The arguments of Brazil, Canada, the European Union, New Zealand, Norway and the United
States are reflected in their executive summaries, 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 the 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 elements 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 (footnote 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 , 2.5 9, 2.60 (and
footnotes 174, 176, 179, and 180), 2.61 (and footnote 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) , 2.8 4, 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, 7.91, 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), 7.2 08, 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, 7.3 10, 7.3 11, 7.31 5 (and footnote
1047), 7.3 21, 7.32 2, 7.325, 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, Tables 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 correct
typographical errors, verify citations, and make stylistic and other non-substantive changes to the
Report, including those identified by the parties.
6.1 The purpose 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 Panel'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
Quantitative Restrictions, para. 4.2; Canada – Continued Suspension, paras. 6.16-6.17; and US – Continued
Suspension, paras. 6.17-6.18.

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
argument 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, the 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, 2.113, 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 Tables 1 and 10. In these instances the Panel found the additional language proposed
by the 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 request for an extension of the date to file its request for
review of precise aspects of the report. 306 Nevertheless, 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 that the Panel modify certain findings with respect to the manner in which Korea made its
measures available 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 and 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 deletion of the Panel's conclusion, because
Korea has not explained the reason for doing so .309 The Panel 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 noted 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 Appellate Body Reports, EC – Poultry, para. 135; Dominican Republic – Import and Sale of
305 Appellate Body Report, EC – Sardines, 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 full 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 unanswered
evidence'." Letter from the Panel to the parties, 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.

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
maintains its conclusion.
6.10. Korea requests that the Panel add further discussion of the LNT model in paragraph 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 model 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 radiation.
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 notes 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 added
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.

could be confirmed by reference 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 requested 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 caesium 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 production 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 change its conclusion.
6.15. Korea requests that the Panel delete its conclusion in paragraph 7.45 that Korea has not
provided documentary evidence 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 laws and regulations provided in Exhibit KOR -156 demonstrate such increased
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 contains 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 account 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, where 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 review, para. 49.
320 Korea's request for review of 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 the Interim Report, para. 39.
325 Japan's comments on Korea's request for review, para. 63.

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 st ate 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 some of the available information was estimated 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 food 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 not fit within the context of the sentence. Korea
also argues 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 modified it in the hopes of preventing any misunderstanding.
6.20. Korea asks the Panel to insert language in paragraphs 7.105 and 7.107 to r eflect 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 arguments 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 information 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 completely reflect the events that were listed in Korea's Diary of Radiological Food
Safety Activity.
6.21. Korea requests that the Panel edit the conclusion 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 measurements 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 future 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 Interim 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 comments on Korea's request for review of 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.

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 are 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 fishery 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 affect 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 regulations 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 opposes 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 show 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 altered 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 move 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 uncertainty 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 for 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 Interim 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.

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 market.
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 added 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 Interim 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.

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 means of confirming its conclusions.
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 requests 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 clarified 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 already 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 modified 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 included the quotations 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 different 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 Report, 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 Interim Report, para. 39.
352 Japan's request for review of the Interim Report, paras. 236-245.

sampling methodology. 353 The Panel insert ed additional cross references in these p aragraphs as
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 overall 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 revise
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 consistency the Panel changed 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
comments 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 for 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 Interim 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 Glossary
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 responses to Panel question No. 1.

guideline levels of the individual radionuclides. Although some experts 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 environment 364, 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 include
extensive arguments on or explanations of the differences between the optimization approach or
the differing uses of ALARA for 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
sampling 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 providing Figure 7.368 The Panel
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
focuses 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 distinguishing between Japanese and domestic products. The Panel made changes to the
language in paragraph 7.399 to reflect this rationale.

364 Expert Meeting Transcript, para. 2.19, see also experts' responses 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 Korea'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.

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 origin are required in the publication of an SPS measure.
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 that 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 language 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 temporarily
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 because 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 explanation 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, the Panel noted that Korea did not provide 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 in footnote 1353.
6.42. Japan asks the Panel to state and explain its findings with respect to whether the response
of Korea's SPS Enquiry 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 been considered
relevant context 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 Products, 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 Agreement (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, paras. 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.

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 covered 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 judgement 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 Appellate Body's statement in EC – Hormones that the risk to be ascertained 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 considering
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 an 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 -restrictive

379 See Appellate Body Report, US – Cotton Yarn, para. 74; Appellate Body Report, US – Countervailing
Duty Investigation 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 Appellate 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 – Softwood Lumber VI (Article 21.5 – Canada).
389 Appellate Body Report, Australia – Apples, para. 354.

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 scientific 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 expected the complainant would submit
scientific evidence in support of its position 392 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 vein, the
panel in US – Animals considered not only risk assessments and studies conducted by the
respondent, but also primary source documents from the complainant, the determinations of the
World Organisation for Animal Health, and risk assessments conducted by other WTO Members.394
Our understanding 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 obligations 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 Panel 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 examining 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 measures that 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.
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 declarations 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 objectively relate to any particular scientific evidence. 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 Korean government authorities. Therefore,
even if the 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 second meeting of the Panel, para. 14; second written submission,
para. 122.

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 regard, 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 Therefore, 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. that 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 discretionary 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 in 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
radionuclides 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, Forestry 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 available 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 2016) (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 Exhibit JPN-238), (Exhibit JPN-251), and 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 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.

7.11. It is important to remember that "a prima facie case is one which, in the absence of
effective refutation 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 must 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
claims, 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 Article 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 submission, para. 94 (citing Appellate Body Report, Japan – Agricultural Products
II, para. 129).
407 Appellate Body Report, US – Wool Shirts and Blouses, p. 14, DSR 1997:I, 323 at 335.
410 Panel Report, US – Animals, para. 7.264. See Appellate 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 Reports, EC – Approval and Marketing of Biotech Products, para. 7.3399; Panel Report, US –
Poultry (China), para.157.

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 phytosanitary 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 treatments 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 whether they are SPS measures 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 Reports, EC – Approval and Marketing of Biotech Products, para. 7.2554.

7.24. To recall, the measures in this dispute can be summarized as follows: import bans on
various fishery products from particular 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 and 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 in 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 reveal a clear and objective 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 dispute 416 that Korea's measures are applied to protect
human health from the risks arising from the presence of contaminants – the identified
radionuclides - in food products.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 Codex
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 Report, 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 applied to protect human health from consumption of contaminated 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 measure based on the intent of
the imposing Member and those necessary to support a claim of arbitrary or unjustifiable discrimination under
Article 2.3. However, the two concepts must not be conflated. Otherwise, we would enter a vicious cycle
whereby a claim under Article 2.3 would be seen as an admission that the SPS Agreement is inapplicable and
then negate the ability to even raise the claim in the first place. Furthermore, there is no indication in the text
of the SPS Agreement that measures falling within 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 Fishery 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).

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 international 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 indirectly, affect international 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 affects 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 concludes that Korea's measures directly affect 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 international 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 samples 427 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 agricultural
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).
424 Panel Reports, EC – Approval and Marketing of Biotech Products. para. 7.435. See also Appellate
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 consignment Korean
authorities follow the sampling methodology set forth in Article 8 of the Korea Food Code. See Sampling and
Treatment 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 Testing Requirements Press Release, (Exhibit JPN-3.b).

7.35. In their first written submissio ns t he 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 on Japanese products and the procedures applied to other imports and Korean
domestic products.
7.36. Prior to the first meeting the Panel sent 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 answers to the following and to specify in their answers the
legal basis (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 caesium detection would trigger the requirement for additional testing?
i. Is this level the same for Japanese, domestic, 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 nature 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 presented 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 provided 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 parties' responses, the Panel 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-market 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.

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 at 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 January
2014). These guidelines also include an attachment with the list of 28 most harvested fishery
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 production 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 concludes 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 fishery products, the list evolved over time beginning with thirteen
prefectures in 2011 439, 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 prefectures 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 section on "Safety Management
of Fishery Products" in the 2014 Guidelines 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 Safety Management),
(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 Management), (Exhibit KOR-159).
434 2014 Guidelines for Food Safety Management, (Exhibit KOR-158) Moreover, the 2015 Guidelines for
Food Safety Management (Exhibit KOR-281) state that at the production stage, "highly consumed items" and
items of "priority control" are 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 Measure 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, Forestry and Fisheries, "Notification of adjusted areas subject to
radioactive material inspection certificate requirements for Japanese fishery products" (26 September 2012)
(Redacted), Translation errors such as "Japan's ocean", "territorial waters" in p. 2 were corrected,
(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).

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 supports
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
frequencies 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 permitted 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 the additional testing requirements.451 According to Korea, for food products with
pre-export caesium certificates 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 points 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. shall 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 indication whether the 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 Information 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 accident, 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 these documents set forth 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 response to Panel question 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).

7.47. Therefore, the Panel concludes that pre-export testing for caesium and iodine is required for
Japanese food products from 13 p refectures 454 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 consumed 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 stages.
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 an 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 of the inspection programme 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 2011 Instruction on new certification requirements for Japanese food, (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, (Exhibit 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 Safety, "Letter re: Development of 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 products 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 for 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 agricultural, 31 fishery, 12 livestock products, and 14 processed foods, the imported foods include
20 agricultural, 20 fishery, 11 livestock products, and 19 processed foods.

detected in levels exceeding the 1 Bq/kg level.464 Korea provided the Panel 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 concludes 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 required 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
detected."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 rounded 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 provided 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 of 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 Release, (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 additional testing requirements were
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
Management, (Exhibit KOR-159), 2015 Guidelines for Food Safety Management, (Exhibit KOR-281).
473 Diary of Radiological Safety Management Activity for Food after Fukushima Nuclear Accident
(Exhibit KOR-171 (revised)) (Diary of Radiological 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 company 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.

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 concludes, b ased 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 Korean 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 reports 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
Alimentarius is applied to radionuclides subject to additional certification". 478 A similar document
for the 2013 requirements 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 caesium 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 Korea'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 Additional 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 blanket import ban and additional testing 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 Safety, "Notification on complementary 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, "Notification 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 detection of radioactivity in imported food, 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 submissions, para. 363.
485 2014 Guidelines for 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).

radionuclides, "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 for 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, the 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 import 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 Japan 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 Food Code (2012), Art. 1, (Exhibit KOR-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; response to Panel question No. 17; Japan's response to Panel 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 branch 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 request, (Exhibit JPN-86.b), p. 1.

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 interprets 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 testing, 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 required for the importation of perishable food products.502
7.63. Except for one instance, 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 that 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 radionuclides 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 requires 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 misinterpreted 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 additional 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, Kanagawa, Shizuoka, Nagano, Tokyo, Yamagata, Niigata.

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 required 507, 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 any of these 150 most consumed products, additional
testing for at least strontium 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
radionuclides.
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 priority
agricultural and fishery products

507 See Korea's revised Annex B submitted in response to Panel question No. 109; second written
submission, para. 376.

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, shipment 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 testing 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 measures
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 claims.
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
circumstances, 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.

is a relevant factor 510 that the Panel would need to consider in evaluating Japan's claims with
respect to Article 2.3 511; Article 5.6 512; 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 obligation 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 SPS 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 measures
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 question 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 response 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 statement, 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 Reports, 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.

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 questioned 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
considerable 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 conduct a risk assessment. Second, the 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 Reports, 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. The 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 permitting 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 characterization of [a] provision as a derogation does not pre-determine the question as to
which party 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. 334)).
531 Appellate Body Report, Japan – Apples, fn. 318 to para. 176 (emphasis original).
532 Appellate Body Report, Japan – Agricultural Products II, para. 89.

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 state, 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 relevant 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, when 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 radioactive 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 radionuclides 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 Report, Russia – Pigs (EU), para. 7.661.
538 Korea's second written submission, para. 298.
539 Korea's second written submission, paras. 33-34.
540 Korea's response to Panel question No. 105.
541 Korea's second written submission, para. 92.

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 evidence 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 rather 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 amounts. The Panel notes that Japan adopted its
own measures in March 2011 on an emergency basis in the absence of a risk assessment. 547
Therefore, 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 insufficient 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 Food 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 measures.549
7.87. In 2013, Korea tightened its existing measures by instituting a blanket import ban on all
fishery products 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 events 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 Japan'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 Panel 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 spread 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 first written submission, paras. 33-35.

have left the FDNPP site and entered the environment 550 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 with Japan that the contaminated water reached the ocean. With respect to one
leak in May 2013, Japan and Korea agree that the tanks affected were 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 contaminated.

550 There were numerous other leaks or overflows at the FDNPP in this time-period. However, Japan
maintains and Korea 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.

Table 10: Leak events 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 from 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 increase 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 was 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, (Exhibit 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 if 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 Dai-ichi
Site", (Exhibit JPN-162).

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 adjacent to the
FDNPS
Radioactive Materials in the
leaked water
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 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 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 times 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
Grossβ 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
Grossβ 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 D7) 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

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 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.

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 evidence 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 reports 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-idUSBRE97J02920130820, (Reuters – Wrecked Fukushima storage tank), (Exhibit KOR-46).
555 Korea's first written submission, paras. 39-55.

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 spikes 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 monitoring 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 asked 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 in 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 Apologizes for Fukushima Leak Disclosure
Delay ),(Exhibit KOR-43).
557 Bloomberg: TEPCO President 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.co.jp/en/press/corp-
com/release/2013/1229511_5130.html cited in National Geographic: 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 Radioactive 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 2013. 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 of the Committee in December 2011. 2013 UNSCEAR 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.

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 uncertainty 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 information is not critical to an
assessment 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 containing 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 accept 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 intervention levels precisely to account for this uncertainty.572

567 Ms Brown's response 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 (fishery 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 experts' responses 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, sediment, 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 groups 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 concentrations 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 are 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 question 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, always 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 contamination 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.

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) achieves 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 uncertainty 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 measures.
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 fishery and livestock products in 2013.
7.97. As regards the second 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 nuclear 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 measure 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 available 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 documents is not enough, rather a Member must demonstrate 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' responses 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.

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 reduction 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 radionuclides,
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 Appellate Body concluded that:
The WTO Member adopting a provisional SPS measure should be able to identify the
insufficiencies 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 within 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 period 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 must 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]hat 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.

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 Panel's assessment of available information.591
7.104. Regarding the requirement that Members continuous ly r eview 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 under Article 5.7, Korea 's SPS measures must be presumed to be in compliance with all of
the requirements 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 Reports, EC – Approval and Marketing of Biotech Products, paras. 7.1495-7.1497 (concerning
Annex C(1)(a)) and para. 7.3245 (concerning Article 5.7).
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 submission, 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 Fishery Products and Opinion Gathering" (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 Japanese Food Imports,
February 17, 2014, Policy Coordination Office for Employment, Ministry of Food and Drug Safety.
(Exhibit KOR-172).
600 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).

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 basis 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
Korean/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 activities to
constitute review of the measure since September 2014 within the meaning 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 measures 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 measures 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 import 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 consultations under the DSU cannot serve as a justified reason for delaying compliance
with the relevant obligations.

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 their consistency 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 claims 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 more 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
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 panel 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 Member'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 complainant 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).

Member's appropriate level of sanitary or phytosanitary protection, or if it is not significantly less
trade-restrictive, the complainant will not have established an inconsistency with Article 5.6.606
7.118. As t hese 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 element the Panel must (i) identify Korea's ALOP610; then (ii) identify the
level of protection that 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 protection.
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 content 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 for 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 proceed 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 raises
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 Products 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.

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 Japanese 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 measures 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 bans, Korea's argument is unavailing. No testing at all is taking place as no
importation is allowed. Therefore, Japan's proposal is an alternative to the current situation.
7.125. With respect to th e additional testing requirements, Japan is conceding that both p re-
export 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 tolerance
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 proposal 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
alternative 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 radionuclides. 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, but 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 written 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 apply to all non-banned
products, would apply.
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.

Table 11: Comparison of the existing measures and Japan's proposed alternative
Existing Measures 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 testing 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 data for various food
products.618 Japan's exhibits accompanying 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 assessment
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 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).
619 See 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 available at: http://www.jfa.maff.go.jp/j/housyanou/pdf/strontium_7.pdf, (Exhibit JPN-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 Panel
question No. 115.

second dispute 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 unduly 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 the factual situation in existence at the time of establishment
of the Panel or whether 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 provisional 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
understands 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 statement 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 of the Panel, para. 22; response to Panel question
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; comments 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 Reports, EC – Approval and Marketing of Biotech Products, paras. 7.3031-7.3032; Russia –
634 Panel Report, US – Animals, paras. 7.294-7.296.

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 against 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 Moreover, 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 the 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 complainant must have a well -founded basis for believing that
the challenged measures are inconsistent with the covered agreements before requesting the
establishment of a Panel. Therefore, the Panel finds Japan's reliance on Article 3.7 of the DSU to
be inapposite.
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 consistency of a challenged measure with WTO obligations, on the basis of post-establishment
evidence: Panel Reports, 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. 115, 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, Russia – Pigs (EU) ).
636 Panel Reports, 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 (Annex 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 and 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 found 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.

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 it 647, the proceedings might never end. Hence, the Panel
does not see that Articles 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 arise 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 understands, therefore, that
Japan is claiming that Ko rea's measures 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 relating 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 established, 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 System, para. 144.
646 Appellate Body Report, Thailand – Cigarettes, paras. 150 and 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 evidence 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 find this argument unavailing. By its very nature, dispute settlement
takes time. 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 for 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 alone 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 scope 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 into conformity. See e.g. Panel Report, US –
Poultry (China), paras. 7.55-7.56.

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 economic 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 alternative 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 finding 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 submission 658
or in its statements 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 restrictive.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 food 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
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 Korea'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 that if the alternative measure
achieved Korea's ALOP it would be technically and economically feasible and significantly 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.

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 – Agricultural Products noted that
any measure that places conditions 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 selected
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 reduction 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 consideration 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 response 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 also Panel Report, Indonesia-Autos,
para. 14.254.
671 Panel Report, US – Upland Cotton, paras. 7.1329–7.1330.

7.154. Japan provided the Panel with evidence as to the 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 such procedures 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 contemporaneous 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 for testing for particular radionuclides if the tests were
conducted by the Korea Atomic 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 includes 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 entire consignment back to Japan.
674 Japan's opening statement at the second meeting 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 Products
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 first 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 Fisheries, 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 deterioration of merchantability, the item 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 written submission, paras. 294-300.

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
determine 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 challenged 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
allegations 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 on imported products.
686 Appellate Body Report, Australia – Salmon, para. 206.
687 Panel Report, India – Agricultural Products, para. 7.562.
688 Appellate Body Report, Australia – Salmon, para. 206.
690 Panel Report, US – Poultry (China), para. 7.244.
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.

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 contaminated with radionuclides is based on the Codex 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 + 137 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 recalls 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 question 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 Expert Meeting Transcript,
para. 2.1.

easily discernible end point and that it cannot itself be used as an international standard for food
acceptance.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 ALARA 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
determined 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 background 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 will always be political or social
pressure 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 Codex 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, paras. 260-264. The
Panel notes in this regard, 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 contribution 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 adherence 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 developed 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;

its background radiation (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
obligations.
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 the 1 mSv/year radiation dose
limit.718
7.173. Thus, if Japan can demonstrate that its proposed alternative measure can 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 measure
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 alternative 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
importing 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 the 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. (see Appellate Body Report, Australia – Salmon, para. 208.)
721 Indeed, it is not a panel's role under any circumstance to conduct a risk assessment.

requires Members to take into account (as relevant) 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; relevant ecological and
environmental conditions; and quarantine or other treatment. The Panel als o bears 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
importing 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 conducted 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 risk 726 that the Panel will take into
account. In particular, the four steps are: (i) Hazard identification 727 ; (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 characterization. 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
reference, 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. 7.450-7.452. It should be noted that the US factors 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" MFDS Administrative Manual).
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 regulating 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
biological, 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 Module 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-response 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 from 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

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 recalls 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 confirmed 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 expressed 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 that
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 restrictive 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 UNSCEAR 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 authorities 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 evidence 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 contain any evaluation or judgment by Korean government authorities.
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.

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 FDNPP
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 release of strontium was est imated to be three to four orders of magnitude less than
the release of caesium.740 Strontium activity 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 that:

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 simulation 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, Matsumoto 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 2014 [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 detection data (Column 6) are from FAJ 2015a (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 IAEA 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.

[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 isotopes 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 Panel also understands 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 strategy 750 or pr oduction 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 Vessel (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. Fukushima's forgotten radionuclides:
a review of the understudied radioactive emissions. Environ Sci Technol. 2014;48:4649-63,
(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 of 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
Professor 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, monitoring, and sampling have been used interchangeably by
the parties in several 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 radioactivity 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.

important as you have the ability to produce actual measurements in food. 751 All the experts
agreed that knowing the remaining radionuclides 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 IAEA 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 that 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 vegetables 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, Korea 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 core 759; detection of caesium -rich
microparticles, demonstrating new and previously unknown release pathways 760 ; seafloor
sediments as a significant source of contamination, including "hot spots", where concentration
levels of caesium are higher 761; detection within the 20km exclusion zone of highl y contaminated
fish that can migrate to other areas 762; 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 respect 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 experts.
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 Agency / International Research Institute for Nuclear Decommissioning,
Analysis Results of Waste Samples (23 February 2017), (Exhibit KOR-302).
755 Experts' responses to Panel question No. 16 to the experts.
756 Dr Skuterud's response to Panel question No. 16 to 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 written 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 Professor Anspaugh expressed the consensus view of the experts when he stated that you 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.

experts 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, with 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. The 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 melt 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 Chernobyl 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 existence of "hot spots"
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 note that such 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 iodide 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
determination 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 recalls 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 question 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 the 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, which is a migratory fish species, that "[t]he
20 km zone is a small area for migratory 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.

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 body 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 Similarly, 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
"considered the revisions of the GLs for radionuclides in the CSCTFF between 2012 and 2015 and
agreed to 'discontinue of 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 how 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 transfer of strontium was unlikely because of the known properties of calcium
when cooking. 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 Randell explained how Codex uses ALARA in setting guideline levels.
However, Dr Randell referred to the processes for deriving limits for other contaminants (arsenic, acrylamide
in food and other alfatoxins) and not specifically the radionuclide guideline levels. Expert Meeting Transcript,
para. 2.25.

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 Japan, 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 products 791 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 tests 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 particular 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 radionuclides in food does not exceed 1 mSv/year by using the 100 Bq/kg
limit for caesium as a proxy for the other 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 Michel'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 Panel question 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 rest of the
world, (Exhibit JPN-11), pp. 36-49.
788 Japan's second written submission, para. 239. See also 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 radionuclides 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 second written submission, paras. 93-95.

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 focuses 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 samples 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 data 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 9400 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 that
the number of samples needed to reach statistically valid results upon which public health
decisions can be based varies depending 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 Anspaugh'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 Meeting Transcript, para. 1.195.
806 Professor Michel explains that:
Regarding the number of samples, 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 quantities can be
well defined. It is not the task to look for tiny percentiles, or extreme pieces 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 nuclides are surveyed by the gamma spectrometry and not found, so one could follow the

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, Professor 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 pairing 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 question 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 in 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 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"; 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 duplicate diet surveys fulfil the
requirements for the aftercare after a nuclear emergency"; 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 – supported 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 strong 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
Fisheries, "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 Survey: Overview of Data"(2011-2015), (Exhibit JPN-132); (iii)
Fukushima Duplicate Diet 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 available 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 monitoring data from 'Aquatic Monitoring''' published by
Japan's Ministry of the Environment"(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 strontium 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 radionuclide testing results on fish"
(15 December 2014 – 15 January 2015), available at:
http://www.jfa.maff.go.jp/j/kakou/export/pdf/comparison_between_japan_and_koreas_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 response to Panel question No. 13. The Panel notes that Professor Michel, Dr Skuterud 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 experts'
responses to Panel question No. 110 to the experts.

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 and 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 also
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 considers 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 makes 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 240 820 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 example, 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. Again, 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. Professor Michel confirms
that such a principle is frequently applied by German regulatory 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 Transcript, 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), (Exhibit JPN-131.3) do not
contain plutonium tests results.
822 Dr Thompson's response to Panel question No. 44 to the experts.

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 to 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 experts 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 case 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 sufficient 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 pairing samples undermine the reasonableness or validity of
its conclusions regarding the proportion of caesium 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 relates to the
28 fishery products, for which Japan is challenging Korea 's import bans. The Panel understands
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 radionuclides) have been found in species that Japan is challenging the import bans for, such
as abalone. 832 Finally, the Panel recalls 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. 110 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 consolidated 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).

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 also 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
methodology 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 Georg 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 concentration 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 meals), 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 data going back all the way to the 1960s.836

833 Korea's first written submission, 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",
ENVIRONMENTAL 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 below 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); Merz 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" [CONFIDENTIAL], (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 ERD Data for Agricultural
Products, (Exhibit JPN-261); and Merz plot calculations based on ERD milk data, (Exhibit JPN-261.2).

Figure 6: Merz Plot for Fishery Products (all data publicly available before 28 Sept 2015)

Source: Japan's slides presented 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
accounts 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 from 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 the 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, Professor 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 response 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.

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 imposed 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 designed to address
contamination of food products following the FDNPP accident. Moreover, it 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 Panel further notes 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 recalls 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 excess ratio percentages, respectively.

841 Professor Michel's response to Panel question No. 82 to the experts. Ms Brown 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 para. 7.108 above.

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.
 Fukushima 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 Pacific cod) from each of the relevant
prefectures to see how many samples tested were in excess of the benchmark level for caesium.

Table 14: Excess ratios for 28 banned fishery 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 pollock (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 (Engraulis 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 keta) 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 (Paroctopus 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 australasicus) 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

 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 (Todarodes 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

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 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 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 japonicus) 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 (Halocynthia 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

 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).

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. Japan 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 "found 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, were 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
categories (game meat and wild plants and wild edible fungi 849 ), 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 that 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 and FY 2013)
All Prefectures 2012.04~2013.3 2013.04~2014.3
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 question 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 species 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, "Testing results of fish products (sampled within 20km radius of F1NPS)
in which strontium was detected by TEPCO" (April 2012–March 2016) (This is an updated 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 Products (April 2012– July 2016), (Exhibit JPN-157).

All Prefectures 2012.04~2013.3 2013.04~2014.3
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 results (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 Products
(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 tolerance levels.852 The Panel recalls that none of the test results provided 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 Panel 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 and after the establishment of the Panel, the Panel relied on
the data available 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 concentration 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.

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 states 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 recalls 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,
including the knowledge of strontium and plutonium releases from the F DNPP and their uptake
pathways and transfer factors, the Panel concludes 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 other 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 recalls 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 respect 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 dietary 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 exposure 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, duplicate 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 concentration >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 does 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 restrictions 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 considering 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.

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 argues that Japan's methodology does not take into account the particularities of the
Korean diet.863 Japan avers that the 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 explains 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 cooking (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 its first written submission, (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 data
submitted to the Panel, (Exhibit JPN-272), (item 3-3).
862 Japan's scientific response to Korea's arguments in its first written submission, (Exhibit JPN-148),
pp. 17-21.
863 Korea's first written submission, para. 171; response to Panel question No. 41; second written
submission, paras. 295-297.
864 Japan's response to Panel question No. 61.
865 Japan's second written 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%202011%20--
%20Cuisine%20and%20Identity_0.pdf?sequence=1 (last viewed 1 August 2016), (Exhibit JPN-199); S. Fallon;
M. G. Enig, "Inside Japan: Surprising Facts About Japanese Foodways", available at
http://www.westonaprice.org/health-topics/inside-japan-surprising-facts-about-japanese-foodways/ (last
viewed 1 August 2016), (Exhibit JPN-200); NHK World Radio, "Let's Cook Japanese" (18 May 2012), available
at http://www3.nhk.or.jp/nhkworld/en/radio/cooking/20120518.html (last viewed 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.

7.231. Although 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, flounder, oyster, pacific saury, 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, cider, 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 support 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 foods. The 50
imported products comprise 15 agricultural, 15 fishery, 6 livestock products, and 14 processed foods; Safety
Management of Radioactivity in Food", 2016 Guidelines for Food Safety Management, (Exhibit KOR-159), p. 6.
According to the 2016 Guidelines for Food Safety Management, (Exhibit KOR-159), the 80 domestic products
include 23 agricultural, 31 fishery, 12 livestock products, and 14 processed foods, the imported foods comprise
of 20 agricultural, 20 fishery, 11 livestock products, and 19 processed foods.
873 The 2016 Guidelines contain a similar list of products.

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#SubCont. See Health
– National Health & Nutrition Survey – Nutrition – Food intakes per capita 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 Korea and Japan (2012), (Exhibit 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 someone 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 response to Panel question No. 81 to the
experts, Ms Brown noted that "in deriving the 100 Bq/kg DIL, Japan 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 Expert Meeting Transcript, para. 1.7 (Professor Anspaugh).
Category in Korean
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

measurements." He also noted that "the assumed contributions of the other radionuclides are very
conservative allowing for relatively 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 methodology 878, the general concentration levels, or the
average consumption doses 879, 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 subject to the random point-of-sale testing.
7.236. More importantly, the Panel recalls that the 1 mSv/year level is based on annual averages.
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
exposure 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 supports 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 exposure 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 No. 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 thresholds.
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 under Japan's monitoring program (Calculations based on 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 nationwide 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 prefectures)"(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 Fukushima 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 results
for agricultural products from Japan'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 data (JPN-131.1), (Exhibit JPN-261.1); Merz 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 cesium 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 question 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.

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 return 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 characterization
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 explains 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 exposure carries 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 doses."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, para. 358; Japan's Ministry of Agriculture, 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 experts; Dr Skuterud's response to Panel 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 indicate a
traceable link from treatment received (CT scans) and observable cancers. See M. Pearce, 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 scans 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 through food ingestion. Moreover, Professor 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 Anspaugh explained that "[e]ven if you multiply 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.

when developing its own limits, reflects an understanding that below these levels food should be
considered as safe for human consumption.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 ensured that the l evels of the other radionuclides were below their Codex guideline levels.
Therefore, 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 recalls 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 recognizes 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 significant impact on the exposure dose.894 In contrast to the 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 respective 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 answering 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 government 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.

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 protection 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 qualitative 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 Japanese 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 additional testing 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 maximum 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 those two measures 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 requirements (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 experts. See also Professor
Anspaugh's opening 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 submission, para. 341.

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 the 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 subject to the blanket import ban, the
Panel finds that Japan's alternative 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 at 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 inconsistently 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 inconsistently 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
originating 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 follows:
Members shall ensure that their sanitary and phytosanitary measures do not
arbitrarily or unjustifiably discriminate between Members where identical or similar
conditions prevail, including between their own territory and that of other Members.
Sanitary and phytosanitary measures shall not be applied in a manner which would
constitute a disguised restriction on international trade.
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 measures.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 conditions 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.

Members and any distinction drawn by the measures is rationally connected to the differences in
the conditions prevailing 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 restriction',
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 same 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 – Salmon (Article 21.5 – Canada), para. 7.111; India – Agricultural
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.
908 Japan's first written submission, 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.

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 Japan 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 two 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 interpretation 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 equivalence, 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 interpreting 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 (citing Appellate Body Report, Australia – Salmon,
913 Committee on Sanitary and Phytosanitary Measures, Guidelines to Further the Practical
Implementation of Article 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 Reports, US – Poultry (China), para. 7.236;
Australia – Salmon (Article 21.5 – Canada), para. 7.89; and EC – Hormones, 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 –
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 written submission, paras. 137-141.

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 d escribing 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 focuses on the inclusion of
the word "territories" in the text of the provision and relies on statements by previous panels as
the bases 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.
931 Panel Reports, Australia – Salmon (Article 21.5 – Canada), para. 7.111. See also Panel Reports,
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 explained that the
Spanish version of the Article 2.3 text does not 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 consistent. 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 version 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 question 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)

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 recalls
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 Products (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
understands 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 Agreement, 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 what 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 Report, India – Agricultural Products, para. 7.463.
945 Paragraphs 5.250, 5.256 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,

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
distinctions 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 recognizes 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 product 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 agrees 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 tends 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.

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, establishment 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 this dispute.

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 concludes 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 would 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 discrimination 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 releases, 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 equally 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 omitted)
955 Japan's second written submission, para. 125.
956 Korea's second written submission, paras. 148-151.

conditions. Korea also argues that the marine environment off the coast of Fukushima is
distinctive.957
7.280. The Panel recalls 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 states 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 level 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 level 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 labelling 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 conditions 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, "Temporary Import Ban on food from regions
contaminated by radioactivity in Japan" (25 March 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 Requirements 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 requirements can be found in
section 7.5 above.

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 -Japanese 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 argues that there is currently insufficient relevant
scientific evidence 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
programme 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 discrimination 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, para. 113.
969 Japan's second written submission, 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 second 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 from 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 2015
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 fishery species subject to Japan'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 written submission, para. 204.
980 Korea's comments on Japan's response to Panel question No. 136.

to accumulate radioactive isotopes more easily, such as blueberries and mushrooms.981 Korea adds
that the said test results, at least those conducted by Korean 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 import 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 also 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 Panel also notes that americium, ruthenium, cerium, and iridium are gamma-ray emitters and
are thus detected using the same spectrometers as those used in caesium testing. 991 In other
words, testing 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 considers 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 response 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 submission, 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; Professor Michel's response to Panel question No. 91 to the
experts.
991 Expert Meeting Transcript, para. 3.15.

weapons 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
concentrated 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 accident (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. 1000 Examples include discharges of
radioactive waste into the Irish Sea and North Atlantic, as well as nuclear weapons tests conducted
in the Pacific, 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 (altitude and latitude) the radioactive debris entered the local,
regional or global environment." 2000 UNSCEAR Report, Sources and Effects of Ionizing Radiation,
(Exhibit JPN-11.1(111)), p. 160.
993 Experts' responses to Panel question Nos. 19 and 22 to the experts. 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 physical 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 No. 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' response to Panel question No. 19 to the experts.
1003 See para. 2.56 above.

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, bearing 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. Andersen (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 strontium-90 released during nuclear weapons testing.
Figure 8: Worldwide average doses from radionuclides produced in atmospheric testing
of nuclear weapons through ingestion 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' responses 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.

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 nuclear
weapons testing 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 from 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 i ts arguments Japan points the Panel to different
subsets of the data, either by time-period or product.1010
7.300. The Panel recalls 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 immediately 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 products 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
conditions existed at the time of establishment of the Panel. The Panel only refers to post-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 Japanese food products were found to contain 100 Bq/kg or more of caesium. Japan further 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 that 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, Bigeye tuna, Blue shark, Bluefin tuna, Chestnut octopus,
Chub mackerel, Chum salmon, Common octopus, Common sea squirt, 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 second written submission, para. 110.
1014 MAFF overview of food monitoring results (April 2012– March 2016), (Exhibit JPN-155).

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 understands that Japan imposed these internal restrictions,
because caesium levels detected in samples 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 level.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 Fukushima 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 Products 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, Pacific 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 restrictions on Pacific cod were lifted in January 2013 in the Miyagi prefecture,
in November 2014 in the Ibaraki prefecture and in February 2015 in the Fukushima prefecture.
See section 2.7.6 above.
1022 Japan MHLW Internal Distribution Restrictions on Food, (Exhibit JPN-48), pp. 1-10.

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
contamination 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 Japan'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 contained between 0 and
25 Bq/kg of caesium. 1026 The Panel recognises 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
recalls 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 support 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 monitoring programme,
29.55% of samples 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 out by the import testing data from 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, (Exhibit 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 Caesium Monitoring Data of Food Products (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. MHLW Caesium Monitoring 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 written submission,
paras. 47-49.
1028 See MAFF overview 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 monitoring results (April 2012– March 2016), (Exhibit 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 Caesium Monitoring Data of Food Products (April 2012– 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 Panel, the pre-establishment data are sufficient to conclude that caesium was not

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 requirements, 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 not 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 level.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 preferred 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 current 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 continues. 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 response 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 experts.
1040 Expert Meeting Transcript, paras. 4.12 and 4.16.
1041 Dr Skuterud's response to Panel question No. 50 to the experts.

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 explains 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
mushrooms, berries and their derivatives. 1043 With 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
concludes 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 regards 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 respective tolerance levels respective for these two
radionuclides, n or 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 scientific 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 establishment of the Panel, the Panel relies on
the data available for the 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 strontium
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 products), (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.

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 recognises that
this is a relatively limited number of direct measurements. 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 potential 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 Professor 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 Chernobyl 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 they 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 significant amount of time needed to conduct the analysis and the
measurements. Expert Meeting Transcript, para. 3.43. See also experts' responses to Panel question No. 87 to
the experts.
1056 Approximately 147 of these samples were tested during the period preceding the Panel's
establishment. Results of Further Analysis at Point-of-Sale, (Exhibit KOR-283), pp. 1-8.
1057 Results of Further Analysis at Point-of-Sale, (Exhibit KOR-283), pp. 1-8. While the Panel has
examined all data in the exhibit, the referenced maximum values relate to the period before the Panel's
establishment. The post-establishment data shows even higher levels of strontium 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 Transcript, para. 3.205.

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 provisions 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
measures, 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 establishment 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 with 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 chapeau to Article XX of the GATT 1994 1061, 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
Members other than the Member imposing the measure or between the territory of the Member
imposing 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 considerations in mind, the Panel
will examine in turn whether Korea 's import bans and additional testing requirements amount to a
discriminatory treatment of Japanese products.
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 w ell 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 – Agricultural 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.
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.

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 pursuant 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 argues 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 additional 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 between 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 that 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 important 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 testing 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 Provisions", 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 second 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 second 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).

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 uniformly 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 respect
to the other points, the Panel agrees 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
agrees 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 equivalent 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 discrimination. 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 Whether 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 According 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 hypothetical 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 Safety 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.

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 allegedly 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 measures than protection of the Korean population from risks associated
with the contamination caused by the FDNPP accident. 1097 Moreover, Korea 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 submission, 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. 217.
1101 Panel Report, India – Agricultural Products, para. 7.427.
1103 Panel Report, US – Animals, para. 7.574 (citing the Appellate Body Report, Brazil – Retreaded
Tyres, para. 226).
1104 Appellate Body Report, US – Shrimp, para. 160.
1105 Appellate Body Report, Australia – Salmon, para. 161.
1106 Appellate Body Report, Australia – Salmon, para. 163.

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
unjustifiable 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 incorporates in its regulatory
framework, relates exclusively to man-made radionuclides. The radionuclides 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 radionuclides 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
radionuclides 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 concludes 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 recalls 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 recalls 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, instead 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 prefectures.1115 Korea acknowledges that it has not completed a risk
assessment with respect 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 sufficient 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.
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.

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 taken 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 recalls that it has concluded that the potential
contamination of Japanese products 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 recalls its findings that 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 recalls
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 notes 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 processing, 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 Australia –
Salmon, the Appellate Body found that a violation of Article 5.1 of the SPS Agreement was 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 under Article 5.1, the Panel considers the fact that Korea has not
reviewed the measure within 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 should take into account in
its analysis whether Korea's measures constituted arbitrary or unjustifiable 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 does 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.

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 certificates of origin in 2013
and 2014 out of 38,033 and 38,682 consignments of food products , which Korea imported from
Japan in these years respectively .1129 The Panel understands 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 certificates 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 Ministry 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 connection, 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)

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 fishermen are in a dismal condition suffering from huge losses.1135
7.348. If anything, this statement 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 consumption 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 Pacific 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 recalls 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
contaminated 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 products. Even with similar conditions within 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 in 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 products 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] trace 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 the Fisheries 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.
1139 News Min, "Cesium detected in domestic green tea" (19 March 2014) (English Translation),
(Exhibit JPN-106.b), p. 2 quoting an MFDS officer.

Korea does not conduct at -the-border testing for the additional radionu clides even with regard to
countries and products, in which higher concentration of radionuclides have been detected than in
Japanese products.1140 Furthermore, the Panel recalls 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 refers 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 location 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 considers the additional testing requirements not to be exclusively
related to addressing 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 Panel 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 considers the
discriminatory treatment afforded by the additional t esting requirements 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 constitute
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 reasoning 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 arbitrary or unjustifiable discrimination automatically leads to a finding that
this SPS measure also constitutes a disguised restriction on 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 particular, 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.

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 health 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 maintains 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 Korea.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 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 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 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 . 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,
inspection 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 submission, paras. 223 and 227.
1153 Korea's first written submission, para. 224.
1154 Korea's first written submission, para. 226.

(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 necessary;
(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 agents[.]
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 recalls 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 and the Panel's findings will be equally
applicable to both measures.
7.9.1 Whether 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 by 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 inconsistency 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,
1156 Panel Reports, 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.

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 that 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
understanding 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
agrees with Japan that testing and certification requirements are explicitly listed in footnote 7 as
examples of the types of procedures subject to the obligations in Annex C.1167
7.370. The Panel further notes 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 procedures 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 substantive SPS requirements from being subject to Annex C,
it would frustrate the purpose 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 provisions 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 object 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 submission, para. 394.
1163 Korea's first written submission, para. 305; second written submission, para. 368 (citing Panel
Report, US – Animals, para. 7.63).
1167 Japan's second written submission, para. 402.
1168 We note that the main paragraph of Annex A(1) states that SPS measures include all relevant laws,
decrees, regulations, requirements and procedures. 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 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.

Moreover, and contrary to Korea 's contention, the panel in US – Animals did not rule that 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 agrees 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 fulfilment of sanitary or phytosanitary measures
7.372. Korea makes an additional challenge to the applicability of Article 8 and Annex C to its
measures. Namely, Korea 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 presence 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, combine both 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
particular, 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 foods, beverages or feedstuffs …". From this language and the Appellate Body's broad reading of

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,
1173 Korea's second written submission, para. 369 (quoting Appellate Body Report, Australia – Apples,
para. 436). (emphasis original)
1174 Appellate Body Report, Australia – Apples, para. 435.
1176 Appellate Body Report, Australia – Apples, para. 436.
1177 Panel Reports, EC – Approval and Marketing of Biotech Products, paras. 7.423-7.429.
1178 Panel Report, US – Animals, paras. 7.69-7.71.

Article 8 and Annex C the Panel understands 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 measures. 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 concludes 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 and 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 new 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 products 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 Safety, "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 Korea's
SPS Enquiry Point, (Exhibit JPN-30).
1183 Korea's second written submission, 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 omitted)

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 recalls 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 radionuclides 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 radionuclide.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 concludes 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 proceeds to
address Japan's substantive claims under the various subparagraphs of Annex C.
7.9.2 Undertaken 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. The 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

1187 Korea's first written 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 for 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.

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 products.
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 competitive relationship between products".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 that agreement, and by the agreement 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 notes 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 between Article 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 Reports, EC – Approval and Marketing of Biotech
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).
1200 Appellate Body Report, US – Clove Cigarettes, para. 108.

this concept informs the determination of likeness by suggesting that likeness is about the nature
and extent of a competitive relationship between and among products.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). Moreover, 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 Body'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 concludes 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 recalls that panels and the Appellate Body have consistently resorted to
four criteria to determine likeness: the physical 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 distinguishes 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
1206 Japan's second written submission, paras. 412-413.

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 for 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 distinction 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 Japanese 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
description 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 Appellate 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 whether 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 second 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 second written submission, 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.

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 Import 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 less than 100 Bq/kg of caesium.1225 However, the question of whether 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 Panel has
found, Korea's measures are applied more than to the 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 notes 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 inspection 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 Therefore, 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 Japanese 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 import ban and additional testing requirements, (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 on 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.

7.401. Even assuming that Japan has established a prima facie case that th e pre -market
additional testing requirements distinguish between domestic 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 from the plant."1231 Korea also puts forward health risks arising from importation of food
products contaminated by radioactive isotopes as the rationale behind the different treatment of
products from certain origins. 1232 The Panel recalls that the documents annou ncing the 2011 and
2013 additional testing requirements refer to health 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 contention that public health concerns constituted one
of the grounds for drawing 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, assessing 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 analytical 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 Therefore, 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 of 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 likeness 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 respect to the traditional likeness analysis, Japan's argument is essentially that:
Evidently, Alaska 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 distinction 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 with 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.

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 understands
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 Japan 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 pollock, 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 apply with regard to all Japanese food products . Japan
does not adduce any additional 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 whether 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 additional 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 than domestic beef absent an
SPS measure, but would have the same sanitary quality 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.

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 to 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
obligation 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 recalls 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 information 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) with respect to any of the challenged measures.
7.9.4 Requirements for control, inspection and approval 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 second written submission, para. 391.
1251 Panel Report, Australia – Salmon (Article 21.5 – Canada), para. 7.156.

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 must be complied with". 1259 In view of the textual similarities, the Panel finds this
definition of "requirement" 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 A nnex 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 notes 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 representative 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 Reports, EC – Approval and Marketing of
Biotech Products, 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 written 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/static/media/files/publications/en/1323947615_ISPM_31_2008_En_2011-11-
29_Refor.pdf, last accessed on 10 August 2017.

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 disagrees 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, because
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 that 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,
inspection and approval of individual specimens 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 Panel 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 the 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,
1267 Korea's response to Panel question No. 103.
1268 Korea's second written submission, para. 399.

mandatory nature of the latter 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 application of criteria for sampling and siting of facilities.1272
7.428. The Panel begins 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 notes
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 agrees 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, therefore, 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
understands 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 hortatory provision.

1269 Korea's opening statement at the second meeting 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 spendthrifts sigh | That hurts by easing."
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 Report, 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 provisions of paragraph 1, Members shall ensure 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[.]

7.432. The Panel further notes 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 " obligations 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 t o
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 General 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 written submission, para. 470. (emphasis omitted)
1280 Appellate Body Report, Australia – Apples, para. 435 and fn. 669 (emphasis added); see also Panel
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://www.oed.com/view/Entry/170414?rskey=ExP6up&result=1&isAdvanced=false#eid, last accessed on
18 August 2017.

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 understands 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 understands 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 Terrestrial Animals, Glossary of Terms, "sample"
available at: http://www.oie.int/fileadmin/Home/eng/Health_standards/tahm/0.04_GLOSSARY.pdf, last
accessed on 5 July 2017.
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 the population with respect to the object of the study such as the
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 systems.
Available at http://www.oie.int/index.php?id=171&L=0&htmfile=chapitre_aqua_ani_surveillance.htm,
last accessed on 5 July 2017. Section 5.1.5.2.2 of the 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 SPS 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.

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 differs, 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 as 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 likelihood 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 seems 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 concludes 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 Article 8 and Annex C
7.447. In the light of the above, the Panel finds that Japan has failed to establish that Korea 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.
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 sample must be selected when additional
testing is required.

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 Annex 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 Agreement 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 Article 7, provides, in the relevant parts:
Annex B
Transparency of Sanitary and Phytosanitary Regulations
Publication of regulations
1. Members shall ensure that all sanitary and phytosanitary regulations 5 which have
been adopted are published promptly in such a manner as to enable interested
Members to become acquainted with them.
(…)
Enquiry points
3. Each 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 regulations 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 Agreement, and the texts of such agreements and arrangements.
However, with respect to Annex B(1) and B(3)(a), as explained in paragraph 7.1 above 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 ordinances 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 exhaustive. 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 jurisprudence to maintain that Korea's measures – import
bans and additional testing requirements, contained in public announcements from the Korean
Prime Minister, MFDS and the MIFAFF 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 t o 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 requirements 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.
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 fishery 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 cesium are detected, the government will
require the submission of test report regarding presence of other nuclides such as plutonium and strontium.
1312 For example, Product-Specific ban on Cod from Miyagi and Iwate , (Exhibit JPN-76.b), states that,
"Cod caught 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)", (Exhibit JPN-55.b (revised)),
(Exhibit KOR-72-(revised)), states that the "…measures will apply to foods from Japan declared for import as of
May 1, 2011.

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 regulations 1313 , 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 measure 1316, 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 question No. 1; Brazil's third-party responses to Panel
question Nos. 1-2; Canada's third-party response to Panel 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 valuation of products for
customs purposes, or to rates of duty, taxes or other charges, or to requirements, restrictions or
prohibitions on imports or exports or on the transfer of payments therefor, or affecting their sale,
distribution, transportation, insurance, warehousing inspection, exhibition, processing, mixing or
other use, shall be published promptly in such a manner as to enable governments and traders
to become acquainted with them. (emphasis added)
Article X:2 of the GATT 1994 provides:

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 Agreement, the 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 in 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
advance 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 situation 1324, 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 understands 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 regulation – 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 content 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 conditions
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 in 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 the transfer of payments therefor, shall be enforced
before such measure has been officially published. (emphasis added)
1322 In the context of anti-dumping and countervailing duties, panels and the Appellate Body have had
the opportunity to examine whether posting 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 Appellate Body in Mexico- Rice
found that simply posting an announcement of the initiation of the investigation 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 notification 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, 1993, Vol. 1,
pp. 19-20.
1326 Panel Report, EC – IT Products, para. 7.1085.
1327 Panel Report, Thailand – Cigarettes (Philippines), para. 7.789.

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 publication 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 interval 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 Agreement 1330, 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 addresses 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 regulation, as well as, in the
case of regulations affecting specific Members or regions, the Members or regions the regulation
applies to. Japan specifically 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 public 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 measures in the context of a Member demonstrating that a proposed alternative
measure achieved the importing Member's ALOP. Appellate Body Report, Australia – Apples, para. 364.
1331 Appellate Body Report, Australia – Salmon, footnote 161 (finding that Annex B(3) and Articles 4.1,
5.4 and 5.6 of the SPS Agreement imply "a clear obligation of the importing Member 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 procedures 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 products to be covered by the regulation together
with a brief indication of the objective and rationale of the proposed regulation. Such notifications shall take
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 covered, with a brief indication of the objective and the rationale of the regulation, including the
nature of the urgent problem(s).

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 enable 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
releases on different government ministries' websites 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 contends 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 websites 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 testing requirements respectively.
7.10.2.1 Import bans
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 ministers, 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 was 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 submission, paras. 327-333.
1339 Korea's second written submission, para. 333.
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), (Exhibit KOR-287); Report on Temporary Import
Suspension of Fishery Products from Japan (28 August 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 Additional Testing Requirements Press Release, (Exhibit JPN-3.b), p. 1.
(emphasis original).

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 argument 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 that
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 import
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 notes that the link
Korea provided is for a website of the Ministry that is normally charged with regulating the
products governed 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 appropriate 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,
(Exhibit JPN-78.b); Product-Specific ban on Cod from Ibaraki, (Exhibit JPN-79.b).
1350 Korea's response 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. 114.
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 provided 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 asserts is the case.

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 2012 1355,
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 measure1356, 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 products from 8 ken near Fukushima.
*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, Ibaraki, 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 from product-specific ban to blanket import ban

Source: PMO Blanket Import Ban and Additional Testing Requirements Press Release, (Exhibit JPN-3.b).

1354 Korea's first written submission, para. 372. See also Japan's June 2014 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 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,
(Exhibit JPN-78.b); Product-Specific ban on Cod from Ibaraki, (Exhibit JPN-79.b).
1356 PMO Blanket Import Ban and Additional Testing Requirements Press Release, (Exhibit JPN-3.b).
1357 MFDS notice for 2013 blanket import ban and additional testing requirements, (Exhibit JPN-75.b).
1358 Korea's response to Panel question No. 130; response to Panel question No. 72.
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 Press Release, (Exhibit JPN-3.b), p. 3.
 Region Existing Tightened
1 Fukushima 49 species including sand lance, cod, trout

All fishery
products
2 Ibaraki 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)

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 contested 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 import 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 Committee 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. Similarly, 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 for 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

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 viable life stages (including eggs and gametes)
of fish, molluscs, crustaceans and amphibians 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 wrong approach".

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 acquainted 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 measures 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 and the methodology or conditions for the testing (e.g., the limit of detection required for
each radionuclide).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 Japan 1371, 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 June 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 Japanese 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 second written submission, para. 336; first written submission, paras. 383-387.

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 radiation 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 concludes that the press release announcing the 2011 additional testing
requirements 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 Press Release, (Exhibits JPN-55.b (revised)), (Exhibit KOR-72 (revised)), p. 2.
1378 KFDA 2011 Instruction on new certification requirements for Japanese food,
(Exhibit KOR-40.b), p. 6.
1379 KFDA 14 April 2011 Press Release, (Exhibits JPN-55 (revised)), (Exhibit KOR-72 (revised)).

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 radionuclides.
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 certificate on other nuclides as specified by
Codex Alimentarius Commission (Codex) 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 government.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. The 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 the conditions applicable to Japan's products, it would be unreasonable for this
Panel to conclude that it was sufficient for Japan. Therefore, the Panel concludes 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 to become acquainted with the challenged measures.

1380 PMO Blanket Import Ban and Additional Testing Requirements 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 testing requirements, (Exhibit JPN-75.b).
1383 MFDS notice for 2013 blanket import 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 clicked 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.

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 2013 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 additional testing requirements.
7.10.3 Providing answers to all reasonable 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 no 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
manner 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 second written submission, para. 362.
1389 Korea's second written submission, para. 345.
1390 Korea's second written submission, para. 341.

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 or 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 responsibility, and then not require that the
concomitant 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 Procedures which recommend that en quiry points
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 point "handles on a routine basis" enquiries and requests
for documents.1394
7.510. Reading the terms of Annex B(3) in their context, and in light of the object and purpose to
provide transparency to interested Members, the Panel concludes 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 complied with the obligations set forth in 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 transparency obligations of the
SPS Agreement (Article 7), 1 December 2008 (Recommended Transparency Procedures), para. 55.
1394 Recommended Transparency Procedures, paras. 52-53.
1395 Japan's June 2014 Request to Korea's SPS Enquiry Point, (Exhibit JPN-31).

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 Points
# 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
radionuclides
 "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 Food
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 questions 1397, 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.

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 to 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 re sponse 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 and 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 not identified which 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 Panel 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 Point 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, (Exhibit JPN-30).
1400 Korea's response to Panel question No. 21, where Korea cites: Korea Food & Drug Administration,
"Response to questionnaire regarding import regulation on foods produced from Japan" (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 question 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 of Korean technical experts. Japan understood that this group was established in September 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 research and testing institutions and the FDNPP. See Japan's first written submission,
paras. 102-103. The group's activities also included conducting analyses of samples of fish and sea water that
it collected during its visits to Japan. Korea has argued that 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 members 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 report. The records from their visits to Japan can be
found in: J. Yoon, On-site Visit Report for Radiation Safety Management for Foods in Japan by Civilian 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 KOR- 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).

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 Group 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 simply 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 reiterates 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 answer or
a failure to provide 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 established that Korea acted inconsistently with the obligation in
Annex B(3), and as a consequence Article 7 of the SPS Agreement.
8 FINDINGS AND RECOMMENDATION(S)
8.1. The panel finds 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 following 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 appropriate 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.

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
originating 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 Panel 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 testing 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, with 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 Korea'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, inspection and approval procedures, the Panel finds that Japan has failed to establish that
Korea 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.
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 benefits accruing to Japan under that agreement.
8.7. Pursuant to Article 19.1 of the DSU, the Panel recommends that Korea bring its measure s
into conformity with its obligations under the SPS Agreement.