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Source(s) of the information:

Report of the Panel

CASES CITED IN THIS REPORT

Short titleFull case title and citation
Argentina – Financial Services Appellate Body Report, Argentina – Measures Relating to Trade in Goods and Services, WT/DS453/AB/R and Add.1, adopted 9 May 2016
Argentina – Hides and Leather Panel Report, Argentina – Measures Affecting the Export of Bovine Hides and the Import of Finished Leather, WT/DS155/Rand Corr.1, adopted 16 February 2001, DSR 2001:V, p. 1779
Argentina – Import Measures Panel Reports, Argentina – Measures Affecting the Importation of Goods, WT/DS438/R and Add.1 / WT/DS444/R and Add.1 / WT/DS445/R and Add.1, adopted 26 January 2015, as modified (WT/DS438/R) and 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)
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 DSUby 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
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
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 WT/DS475/AB/R
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
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
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

ABBREVIATIONS

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
UNSCEAR United Nations Scientific Committee on the Effects of Atomic Radiation
VCLT Vienna Convention on the Law of Treaties, done at Vienna, 23 May 1969, 1155 UNTS 331; 8 International Legal Materials 679
WHO World Health Organization
WTO World Trade Organization

1 Introduction

1.1.
This dispute concerns the Republic of Korea's (Korea) imposition of import bans and additional testing and certification requirements following the Fukushima Dai-ichi Nuclear Power Plant (FDNPP) accident on Japan's north-eastern coast on 11 March 2011. 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 Article 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 February 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, Norway, 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 Working 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 questions9 prior to holding its first meeting with the parties on 12-13 July 2016. A session with the third parties 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 the experts and relevant international organizations can be found in section 1.3.3.
1.10.
Subsequent to the first meeting, the Panel sent the parties questions to be answered in writing and received responses on 2 August 2016. The parties submitted their second written 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 comment on certain exhibits (KOR-294 to KOR-296, KOR-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 detail, it would be appropriate to give Japan an opportunity to respond.10 In its decision granting Japan the opportunity 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 Korea 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 descriptive 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 could comment on any revisions to the descriptive part when the Panel issued its Interim Report.14 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 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 public might be confused and believe that the report would be publicly available as of the date displayed on the WTO 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 the final report to the parties to the DSB16 and that it was the DSB which had made the Panel's letter to the DSB public pursuant to the May 2002 decision of the General Council on circulation of WTO documents.17 To address Korea's concerns, the Panel sent a new letter to the chairperson of the DSB to clarify that the report would only be public after circulation to all 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 ability 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 be protected.21 The European Union, Guatemala, India, and New Zealand expressly supported the request.22 The United States did not specifically 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 that the DSU drafters devised Article 10 knowing that third parties would be given the opportunity to make submissions and be heard by the Appellate Body and considered that the access permitted under Article 10 would be sufficient to allow them to participate 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 organizations to facilitate the carrying out of its mandate.25 Therefore, the Panel's timetable and Working Procedures contemplated from the outset that experts and international organizations would be consulted. Thus the Panel adopted both regular Working Procedures 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 written submission and the date of the first meeting.
1.19.
Shortly after the Panel received Korea's first written submission, the Panel sent a communication to the parties seeking their views on the use of scientific experts and consultation with relevant international organizations.26 In particular, the Panel asked the parties whether it should seek scientific or technical advice from experts 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 whether 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 consult international organizations in the following scientific areas: severe nuclear accidents, human health impact from exposure 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 Protection (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 reasons. First, the Panel could determine from the nature of the evidence and argumentation already on the record that it would benefit 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 received 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 including 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 organization 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 nuclear 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 radiation32 because the issue of the risk to human health from consumption of radionuclides was not in dispute.
1.22.
Between 18 May 2016 and 20 June 2016, 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 international 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 organizations indicating which of them had indicated that they were willing and available to assist the Panel. The Panel also provided the curricula vitae 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 names of the experts to the parties in two communications.34 Japan accepted all of the proposed experts, although it expressed preferences for some over others. Korea accepted five of the proposed experts and objected to the rest.35 In Korea's 13 June 2016 letter 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 affect 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 objections to the experts, with the need, advocated by Korea itself, to possess expertise in the [stated] areas." 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 rise 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 objections 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 referred 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 radionuclides 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 disqualify them. Nevertheless, the Panel was able to identify enough 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 environments 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 that 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 that 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 informed the parties that it had selected the following experts: Professor Lynn ANSPAUGH37, Ms Joanne BROWN38, Professor Rolf MICHEL39, Dr Lavrans SKUTERUD40, and Dr Patsy THOMPSON41. Each of the selected experts had expertise in at least two of the areas 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, the 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 expertise 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 opening statement at the second meeting, Korea stated that it had requested the Panel to seek experts "with broader experience as food safety risk assessors." According to Korea it "had emphasized early in the proceedings the importance of having experts with expertise in the scientific assessment of food safety issues having regulatory impact".43 Following a request from the Panel to identify where Korea made this request, Korea stated that the relevant communications were its letters of 2 May 2016, 7 July 2016 and 12 July 2016. In those 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 international 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 safety 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 Article 13 of the DSU Korea requested that the Panel redact the submissions 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 parties' comments on the redactions46, the Panel made some final adjustments. Furthermore, in response to a request from Japan, the Panel provided a more lengthy 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) argumentation 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 characterizations 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 provide 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 questions. Therefore, the experts were granted more time than originally contemplated 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 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 Panel'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, the 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 transcript 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 continuous 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 where 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 chain 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 exposed 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 mechanisms and may become incorporated into the environment. Once in the environment, 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 radionuclides may become incorporated into plants and animals52 and thus eventually enter the human food chain.
2.5.
When large amounts of radioisotopes are discharged into the environment, they can affect foods by either falling onto the surface 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 plants, 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 generated in nuclear installations 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 radionuclides 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 wild, 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 radionuclides 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, correspond 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 conversion 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 present 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 for 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 radionuclides.57 Because of prior release events 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 whether the exposure is to high doses (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 effects 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: Strontium 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. Strontium 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 and 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 fluids.66 For adults, 30% of plutonium absorbed in the body remains in the 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 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 because 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 practical 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 doses. There may still be long-term effects if errors are incorporated at the cell-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 adolescents and children as they are significantly more susceptible to radiation exposure than adults. Relevant epidemiological studies have shown a significant cancer risk increase at doses above 100 mSv71; 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 particles 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 cancer. Consumption of radionuclides contaminated food and/or water contributes to overall radiation exposure."72 At present, the Korean population is not directly exposed to radiation 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 very 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 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 applicability 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 definitive as to the biological half-life of that radionuclide in a particular individual or group of individuals.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 March 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 initially 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 Codex (and its parent organizations 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 visual representation of the complementarity of the work of these organizations.

Figure 1: International response to radioactive contamination

[SEE IMAGE IN SOURCE DOCUMENT]

2.21.
As noted above, the Panel asked each of these organizations for assistance in identifying experts to assist the Panel. Moreover, the Panel sent questions to three of these organizations: IAEA, ICRP, and Codex. Additionally, documents published by these organizations 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 inter-governmental body created in 1963 by the FAO and the WHO under the Joint FAO/WHO Food Standards Programme to develop food 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 governmental 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 radionuclides 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 first discussed in the aftermath of the 1986 Chernobyl nuclear accident, as no comprehensive international guidance on this existed. The first version of the Codex Radionuclide GLs was adopted by Codex in 1989 (18th Session of the Codex Alimentarius Commission). The Codex Radionuclide GLs were elaborated by 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 into 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 (including radionuclides), as well as its recommended maximum levels and sampling plans for a variety of contaminants moving in international trade.80 CODEX STAN 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 radionuclides81, Codex has developed General Guidelines on Sampling (CAC/GL 50-2004) which provide guidance on sampling procedures to ensure that food being tested complies with a particular Codex commodity standard, as well as the Principles on the Use of Sampling and Testing in International 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 these 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 radionuclides 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 radionuclide that would lead to 1 mSv/year, Codex made assumptions on the quantity of food consumed per year, the 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 from 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 consumed 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:

Table 2: Guideline levels for radionuclides87

Commodity/Product NameRepresentative radionuclidesCodex 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 NameRepresentative radionuclidesCodex 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-134Caesium-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 necessity 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 regulates overall dose 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 Bq/kg limit for caesium is imposed to ensure that exposure from relevant radionuclides from the consumption of food products does not exceed 1 mSv/year. Both Japan and Korea maintain a specific maximum level for caesium of 100 Bq/kg.
2.29.
Codex standards are normally elaborated through 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 Codex 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 and 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 of 200 kg and 550 kg 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 example, 1,400 Bq/kg for 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 Contaminants in Food (CCCF)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 interpretation 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 that 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 which the Netherlands and Japan co‑chaired to follow-up on the conclusions and recommendations 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 development 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 noted that the ICRP was currently reviewing dose coefficients for ingestion of radionuclides to 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 such time as the outcome of the review of the ICRP became available, which might lead to the revision 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 received no further information that might trigger the review of the provisions for radionuclides in the GSCTFF.99
2.32.
The current 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 cannot be seen in isolation.

2.3.2 The United Nations Scientific Committee on the Effects of Atomic Radiation (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 assessing the scientific information on the effects of exposure to ionizing radiation.100 The UNSCEAR 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 example, the ICRP (see section 2.3.3) relies heavily on the scientific data collected in the UNSCEAR reports to develop its own recommendations on 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 which were reported at the General 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 programme 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 registered 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 protection, also referred to as radiation protection and defined by the IAEA as "the protection of people from harmful effects of exposure to ionizing radiation, and the means for achieving this".105 The ICRP looks at radiological protection both with regard to the protection of people – for example to help prevent cancer, diseases and effects associated with exposure to ionizing radiation – and with regard to the protection of the environment.106 The ICRP operates committees that focus on different areas of radiological protection. For example, the work of Committee 2 focuses on "Doses From Radiation 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 many 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 radiological protection, a few constitute "fundamental recommendations". When preparing its recommendations, the ICRP considers the fundamental principles 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 protection such as the IAEA (see section 2.3.4). The latest fundamental ICRP recommendations 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 advice, 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 the 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 and 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 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 Earthquake, 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 reported 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 further 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 infrastructure 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 injured personnel. At the point at which the pressure inside 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, including 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 were 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 instructed 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 accident, the Japanese government formally declared an International 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 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

[SEE IMAGE IN SOURCE DOCUMENT]

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.

Figure 3: Boiling water reactor at the FDNPP

[SEE IMAGE IN SOURCE DOCUMENT]

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 ocean 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", comprises radionuclides released from the cores and confining structures into the environment 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 territory occurred on 15 March 2011. The releases were likely related to release of activity 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 directly discharged into the environment, 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 release 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 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, respectively, 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 radionuclides were also released in amounts relative 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 qualification 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 estimated 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 accident 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 radioactive products (which had already been scrubbed within the water pool) 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 airborne aerosols leaked into the reactor building and eventually into the 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 destruction 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 within the containment by other mechanisms (for example the suppression pool), 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 their 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, 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 composition 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 and 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 released to the atmosphere were dispersed over mainland Japan, and then were 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 deposition 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 discharges 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 observed 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 reported 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 strontium 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 mobility 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 radionuclides is not necessarily localized, 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 IAEA report includes a variety of theoretical models used to estimate the dispersion patterns of the radionuclides released during the accident at the FDNPP.

2.5.1.3.1 Atmospheric dispersion

2.54.
The transport of the atmospheric radioactive releases was directed mainly to 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 concentration 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 FDNPP 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 radiation 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 current155 and were transported 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 radionuclide stays on the surface or sinks to the sediment, varies 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 Pacific 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 other 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 coastal 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 hypothesize that river catchments will be a longer-term, ongoing source of radiocaesium to estuaries and coastal areas.160

2.5.2 Releases after the initial accident

2.58.
The releases of radionuclides occurring at the moment of the accident were not the only releases from the FDNPP. 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 material released into the ocean are matters of dispute between 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 releases on the record of this dispute.
2.59.
After the initial accident, 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 energy ministry official as stating that the government estimated 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 of 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 ocean.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 water.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, more 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 fuel and becomes contaminated.170 Researchers have estimated 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 level in seawater was found to be 400 Bq/l in December 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 the 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 FDNPP. These measurements have been published on a daily 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 daily basis. Since October 2016, the measurements near 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 information will be discussed in section 7.7.6 below.

2.5.3 Radioactive material still in the reactor

2.63.
TEPCO has been investigating the PCVs, including through the collection of water samples from the PCVs in units 2 and 3 in August 2013 and October 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 being 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.

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 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 government also coordinated its 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 water under the Food Sanitation 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

NuclideType of FoodBq/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 transuranic 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 restrictions 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 request 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 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 exposure relative to other radionuclides considered, such as Pu-239 and 240 and Sr-90.188 New levels for radioactive caesium were set for four food categories: drinking water (10 Bq/kg), infant foods (50 Bq/kg), milk (50 Bq/kg), and general foods (100 Bq/kg)189, and excluded radioactive iodine, due to its short half-life.190 If caesium was detected below the level, the food was considered safe for market distribution, because Japan's derivation of its caesium thresholds account for a dose contribution from Sr-90 and other radionuclides consistent with its assumptions on the relative share of each radionuclide in the releases.191
2.69.
Japan placed restrictions on products for public consumption192, the distribution of certain foods in specific areas193, and the use of agricultural land and the collection of wild food products.194 Amongst these restrictions are those on drinking water, food, leafy vegetables and fresh milk195, in line with national guidelines that were developed by the NERH. These were continuously revised, most 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 programme 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 lifting of a domestic distribution restriction requires an increased 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 distribution restrictions have been lifted progressively over time200, 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 lifted; 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), (iv) Turnip, (v) Mushrooms (log-grown shiitake (outdoor and indoor cultivation), log-grown pholiota nameko (outdoor cultivation), and wild mushrooms), (vi) Bamboo shoots, (vii) 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 fish), 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 products from Aomori, Iwate, Miyagi, Yamagata, Ibaraki, Tochigi, Gunma, Saitama, Chiba, Kanagawa, Niigata, Yamanashi, Nagano, and Shizuoka.204 Various Japanese governmental authorities publish information both on these distribution restrictions205 and the monitoring data collected under the national food monitoring programme.206
2.73.
Japan monitors food and the environment, 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, storage, 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 47 prefectures210, and covers: grains, vegetables, fruits, edible fungi (cultivated), fishery products (fresh water and non-freshwater), cattle meat, livestock 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 radionuclide content close to or exceeding the maximum limit is detected, the frequency of inspection increases213; the government may separately instruct the local governments on the frequency of inspections as needed.214
2.75.
The food monitoring programme aims to identify and monitor contamination levels in food relative to Japan's maximum level for caesium, initially 370 Bq/kg and since April 2012 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 the 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 any 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 caesium 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, 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, flounder, Flame snapper, Laver, Wakame seaweed, Olive flounder, Redwing searobin, Stone flounder, Crimson sea bream, Krill, Spiny dogfish, Beach conger, 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 Radiation 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 2012.225Japan also published specific implementation guidelines for sea area monitoring in 2013.226 The sea area around FDNPP is divided into the following four areas in terms of their distance from the plant (a) Area close to FDNPP is the area within 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 and 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 monitored.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, Transport 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 leakage of contaminated water is suspected or confirmed, TEPCO and the central governmental organizations work together to investigate and monitor the situation through the collection of seawater samples.230 The monitoring frequency, the radionuclides being monitored, detection limits, sampling depth and monitoring organization vary according to the extent of contamination and the sampling points.231
2.81.
For seawater in the area close to the FDNPP, the monitoring frequency ranges from anywhere between once a day to once 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 sampling points. The outer sea area is also divided up into sampling points depending on which the monitoring organization does monitoring either once in six months or once every year. The radionuclides tested also depend on the sampling points and include caesium 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 frequency ranges from once a month to once a year. For both these areas, monitoring is for caesium, strontium and plutonium, and the frequency changes 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 monitored 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 four 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 and 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, Agriculture, Forestry and Fisheries (MIFAFF)238 was responsible for regulating fishery products and livestock products, and Korea's Food and Drug Administration (KFDA)239 was 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 requirements 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 Japan.. 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, KFDA 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, processing 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 certificate 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 requirements to fishery and livestock products between 14 May 2011 and 9 September 2013.
2.92.
Initially, non-fishery products (except livestock) from 13 Japanese prefectures245 were required to be accompanied by a pre-export caesium and iodine testing certificate 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 same testing and certification requirements to fishery and livestock products two weeks later.247 With regards to fishery products, the list of prefectures requiring this certificate was modified twice248 following the detection of radioactive materials in certain regions 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 on 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 results 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 testing replaces the certificate of origin in the prefectures where it is required253, whereas Korea has indicated that the "requirement to provide a pre-export cesium testing certificate does not supersede the requirement for a certificate of origin".254

2.7.2 At-the-border testing for every consignment

2.96.
The first measure Korea put in place intensified the "at-the-border-testing" regime for caesium and iodine in Japanese products. Before the accident, Korea tested for caesium and iodine in Japanese products in samples from randomly selected consignments, as it currently does for most products from third sources.255 Three days after the accident the KFDA and MIFAFF began to test for caesium and iodine in samples from every consignment of fresh agro-forestry products and livestock products from all Japanese prefectures256, 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 iodine at the border on a weekly basis.257 A few days later258 KFDA extended the scope of non-fishery products for which samples from every consignment are tested for caesium and iodine at the border to all agro-forestry products (fresh, dried, refrigerated and frozen), 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 the 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 that the additional radionuclides are within 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, plutonium, 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 been 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 report of the additional radionuclide certification must be made "either by [a] Japanese official laboratory or by [a] laboratory designated by the Government of Japan".
2.99.
In the case of fishery and livestock products, the May 2011263 information document by MIFAFF setting up the requirements for a pre-export certificate for caesium testing from 13 prefectures and certificate of origin from all prefectures indicated that "when certificate and testing standards for radionuclides including strontium and plutonium become available in the future, additional certification for other radionuclides are expected to be requested".

2.7.4 Expanded testing for additional radionuclides

2.100.
More than two years later, in September 2013264, Korea adopted three additional measures: (1) extending 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 products 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 section 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] presence of other nuclides such as plutonium and strontium" for all fishery and livestock products from any Japanese 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 Inspection 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 or not - the level of caesium or iodine that would trigger the requirement to test for the additional 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 imported 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, Korea 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.

Table 5: Japan and Korea's caesium-134 and caesium-137 levels over time

Product typeCodex 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 2012After 1 April 2012Prior to FDNPP accidentFor Japanese imports after 1 April 2012 until presentFor 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 territory.270 Following the detection of radiation levels exceeding 500 Bq/kg in Japanese spinach, in March 2011271 the KFDA put in place its first product-specific import bans on non-fishery products from five prefectures.272 As of the Panel's establishment on 28 September 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 followed Japan'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 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)JAPANKOREA
adoptedstatusadoptedstatus
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

2.7.7 Blanket import ban

2.107.
In 2013, in a press release from Korea's Prime Minister's Office on 6 September295, Korea announced not only the lowering of its Cs-134 and Cs-137 maximum level and the extension of its additional testing requirements to fishery and livestock products, but also an import ban on all fishery products from the following eight prefectures: Aomori, Chiba, Fukushima, Gunma, Ibaraki, Iwate, Miyagi and Tochigi. Japan refers to this 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 beyond 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 by 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, Ibaraki, Chiba, Gunma and Tochigi.
2.110.
As for the product-specific bans, the Panel recalls that Japan only challenges those that affect Alaska pollock and Pacific cod 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

ProductPlace of HarvestPlace 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
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:

Figure 4: Current distribution of prefectures subject to Korea's measures and requirements following the FDNPP accident

[SEE IMAGE IN SOURCE DOCUMENT]

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 dated 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 Alaska pollock from Fukushima and on Pacific cod from Aomori, Iwate, Miyagi, Ibaraki and Fukushima;

b. the blanket import ban dated 2013 on all fishery products from 8 prefectures for 28fishery products.

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 MEASUREPRODUCTS COVERED BY JAPAN'S CLAIMSPREFECTURES IN WHICH THE MEASURE APPLIESDATE 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

[SEE IMAGE IN SOURCE DOCUMENT]

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 accordance with paragraph 21 of the Working Procedures adopted by the Panel (see Annexes B-1 and B-2).

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 meeting. The parties submitted 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 aspects 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 paragraph 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, 2.59, 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), 2.84, 2.85, 2.87, 2.98, 2,100, 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 810), 7,208, 7,209, 7,210, 7,213, 7,214, 7,219, 7,220, 7,223 (footnote 846), 7,224, 7,225, 7,228, 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), 7,284, 7,285, 7,286 (footnote 977), 7,290, 7,301, 7,302, 7,305, 7,306, 7,308, 7,310, 7,311, 7,315 (and footnote 1047), 7,321, 7,322, 7,325, 7,335, 7,341, 7,350, 7,351, 7,354, 7,363 (footnote 1155), 7,376, 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 referred 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 purpose of the interim review is consistent with the approach adopted by previous panels.303 We will review our Interim Report only in light of comments made by the parties which relate to "precise aspects" of the Interim Report.
6.7.
Both parties have asked the Panel 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 notified of the potential issue through Japan's comments on Korea's answers to the Panel's questions after 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 between 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 not contain language referring to the importance of selecting experts with experience in the assessment 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 paragraph. 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 be inappropriate. The Panel noted in the footnote that Korea reiterated its views in its 12 July letter. With respect to deleting the Panel's conclusion, the Panel notes that in its request Korea did not point the Panel to 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 uncertainty 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 background information and that the Panel goes into more detail in the findings about the LNT model and its relevance 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 understands that the uncertainty is that it is impossible to definitively correlate adverse effects (cancers) to low doses of radiation below a certain threshold. Therefore, the Panel finds its characterization is an accurate description of 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 effective 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 nor Korea dispute that there have been leaks that continued after the 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 question 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 arguments 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 that the Panel insert into these 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 situation surrounding the release of radionuclides and not their impact. The parties' arguments with respect 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 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 future. 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 products 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 Korea in question No. 131. In its response to that question Korea provided an updated number of test results which were attached in exhibit KOR-283. The exhibit contains a table of "results of further analysis on the samples at the point-of-sale." The Panel has 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 before 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 affidavit, 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 objection 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 as 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 Korean domestic regulatory structure. As Korea explained the central authority 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 uniformity in such a situation. That is all that this statement is meant to reflect.

6.4 Provisional measures

6.18.
Korea asks the Panel to alter the penultimate sentence of paragraph 7.91 to state that relevant information on releases from the FDNPP was "still unknown" prior to Korea's adoption of the 2013 measures.326 Japan notes that this is not a minor edit, but rather would change entirely the sense of the Panel's conclusion that there was sufficient information available to Korea at the time it adopted its measures 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 determining 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 reflect the difficulties it alleges it faced in obtaining information from Japan.330 Japan argues that the language Korea seeks to insert is incorrect and misleading. Japan argues that if the Panel accepts Korea's request it should also reflect that Japan did respond to Korea's requests and to expand the summary of Japan's 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 relevant 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 agrees 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 assess the risks associated with the consumption of food products from Japan.334 The latter can be addressed through recourse to Article 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 effect and Japan's proposed alternative measure. Thus the fact that Japan is not challenging pre-export caesium and iodine testing does not mean it is not appropriately listed as an existing measure.336 The Panel did not delete the measure from the column on existing 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 added 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 refers the Panel to Japan's response to question No. 70. In response 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 on the domestic market. Therefore, the Panel has modified the paragraph, 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 footnote 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 measures 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 individual radionuclides and the dose limit. If ALARA is taken 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 Panel maintains its conclusion that Korea has not provided the Panel with internal 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 that Korea clarified 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 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 Exhibit 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 soluble caesium. The Panel added 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 also 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 species could be caught outside the 20km zone is negligible.344 The Panel noted 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 comments 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 there were test results for both caesium and 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 concern samples taken after the establishment 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 the 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 Japanese 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 data available as of establishment of the Panel contains test results for caesium and strontium for species representative for all of the 28 fishery products, for which Japan is challenging the blanket and product-specific import bans. It is based on this data, 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 each 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 below 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 Bq/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 factor in the Panel's finding, at paragraphs 7,250, 7,252 and 8.2 a), that Korea's product-specific import bans, when introduced in 2012, were 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 finds the additional language 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. 44 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 an 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 quoted 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 references 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 analysis 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 sampling methodology.353 The Panel inserted additional cross references in these paragraphs 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 misinterpretation.354 Korea finds Japan's proposed changes incorrect. Korea requests its own change to clarify that Members are not required 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 own the logic of the ICRP and Codex in developing its own limits. The Panel altered 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 discussion 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 match the reasoning in paragraph 7.96, which the Panel cross-references in this paragraph.358 In that paragraph, the Panel concludes that "there was 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 ALARA 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 that 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 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 environment364, the Panel has only referred to the work 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 Korea'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 arguments.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 it 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 levels could have on the competitive relationship between Japanese food products and those from 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 likeness between imported and domestic products cannot be presumed in the case at hand.370 The Panel recalls that its findings 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 other 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 FDNPP 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.

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 in 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 or 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 the 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 factually 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 was posted and where at the time the measures 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 obligation in Annex B(3).378 Korea did not comment on this request. The Panel added additional language in paragraph 7,516 to address Japan's request.

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 case 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 authority has provided a reasoned and 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 clarified 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 domestic regulator even if the regulator were relying on a minority 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".384Korea 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 that 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 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 dependant 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 position392 and that factual elements outside a Member's risk assessment may be relevant in seeking to establish a claim under Article 5.6.393 In that 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 measures 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 claim 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 its 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 time 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 that was compiled 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 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 explaining 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 testing 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 Panel 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 evaluating Japan's claim in section 7.7 below.

7.2 Burden of proof

7.9.
The DSUdoes not include any express rules concerning the burden of proof in panel proceedings. However, the Appellate Body has concluded that generally accepted 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 claim or defence. Thus, the Appellate Body has explained that:

[A]s a general matter, the burden of proof rests upon the complaining Member. That Member must make out a prima facie case by presenting sufficient evidence to raise a presumption in favour of its 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 to provide proof thereof.403
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, Japan 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 claims 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 argumentation 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 effect 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 followed, might constitute an error of law.408 In considering the order selected for examination of the claims, a panel should be aware that the 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 Article 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 factual questions addressed. Therefore, the Panel will analyse 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 will move to Japan's claims with respect to Korea's adherence to its transparency obligations under Article 7 and Annex B. The Panel notes 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 to 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), the operation of Korea's testing requirements, Article 5.7, Article 5.6, Article 2.3, Article 8 and Annex C, and Article 7 and 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 assessment 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 developed 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 Agreementdefines 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, according to Article 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.
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 otherwise 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 only 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 Annex A(1), then the measures are within the jurisdiction of the SPS Agreement.
7.26.
Japan alleges415 and Korea does not dispute416 that Korea's measures are applied to protect human health from the risks arising from the presence of contaminants – the identified radionuclides - in food 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 release 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 its 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 intent of the measures, the relationship 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 meaning of Annex A(1)(b). We now turn to whether the measures affect international trade, such that they would fall within the scope of the obligations in the SPS Agreement.

7.4.2 Whether the measures directly or indirectly affect international trade

7.28.
Even if a measure 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 trade 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 contested 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 definition 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 measure, 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 will address these applicability issues as it addresses Japan's claims. However, before analysing 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 selected samples427 from all consignments originating from Japan. Additionally, Korea imposed testing requirements for the additional Codex radionuclides for agricultural products, processed foods and food additives in May 2011.428 According to these requirements, detection of iodine and caesium in Japanese 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 products 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.
7.35.
In their first written submissions the parties presented divergent views on how the measures operate – in particular with respect to (i) the levels of caesium 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 consistency 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 before 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 domestic 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 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, pine nut, etc.), fruits (apple, pear, tangerine, peach, jujube, plums, berries, etc.), crops cultivated outdoors such as mushroom, food items of which cultivation period till harvest is longer than three months, etc. For fishery products the items with the largest 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 for imported foods both at the border and at the point-of-sale."435 In response to the Panel's request for clarification 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 tested 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 2011439, adding and deleting prefectures in June and October 2012, coming to a final list of 16 prefectures.440 It is important to note, that 8 of the 16 prefectures covered by the pre-export testing requirements are also subject to the blanket import 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 Korea. 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 at-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 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 origins within Japan, the different parts of the consignment are tested separately.444 KFDA's instructions to Food Import Division refer to the radiation inspections 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 40 countries to testing at the border on a random basis, and blueberry 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, the Panel notes that regardless of the frequency or the results of at-the-border testing for imports of other 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 meeting, Korea stated that it only tests for caesium again at the border if the pre-export caesium certification from 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 radionuclides, 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 caesium is detected 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.
7.47.
Therefore, the Panel concludes that pre-export testing for caesium and iodine is required for Japanese food products from 13 prefectures454 and Japanese fisheries products from 8 prefectures.455 The measures also require at-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 subject 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 plutonium, 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 administrative instruction distributed internally 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 caesium in the 150 most frequently consumed food items at the harvest and distribution stages (see paragraph 7.41 above). These guidelines note that "[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, these guidelines 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 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 Guidelines 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 "trace amounts"466, or simply if iodine or caesium "is detected."467 Japan argues, therefore, that 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 that the pre-market additional testing requirements apply when 1 Bq/kg of caesium is detected.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 number.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 reference 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 Food 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 provided 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 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 Japanese 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 the Panel only begin in 2014 and do not cover the early years that the measure was in place.
7.55.
Thus, the Panel concludes, based on the evidence before us, that detection of "trace amounts" of caesium or iodine will trigger the additional testing. At least since 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 authorities for additional testing. In those requests, 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, Korea stated that it requires testing of additional radionuclides as specified by the CODEX 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 for 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 Korean 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 required for strontium, plutonium and other radionuclides.484 As evidence for this Korea refers to the Korea Food Code (2012) and the 2015 Guidelines for Food Safety Management.485 Article 1 of the Food Code refers to determining contamination with other radionuclides, "such as plutonium, strontium, etc."486 The 2014 Guidelines for Food Safety Management do not address additional 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, further 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 plutonium exceeded Codex levels. Korea indicated that this was because of a lack of capacity in government laboratories and that for testing the other radionuclides external laboratories would be needed. When Korea was requested to confirm this in the questions following the second meeting, Korea stated that pursuant to the Korea Food Code (2012) "MFDS is authorized to require 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 iodine was detected.490 The Panel notes that when Korea provided the Panel with its results of further analyses on the samples taken at the point-of-sale, the data only reflects testing for strontium and plutonium and no other radionuclides.491
7.59.
Based on the foregoing, the Panel concludes 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 testing 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 themselves as well as other exhibits, as mentioned below, provided to the Panel contain references to testing facilities designated, 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 or 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 language.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 additional 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 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 acknowledged 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 laboratories 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 testing for Korean products destined for Japan. Japan explains that it contacted 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 testing, 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 tests 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 following with respect to Korea's testing requirements:

a. Caesium and iodine testing 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 specified below (for a tolerance level of 100 Bq/kg),

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 products from certain manufacturers from Ukraine, France, Denmark 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 caesium 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 iodine testing, as well as additional testing if required507, is conducted randomly on the 150 most consumed products in Korea. If caesium is found at a level higher than 0.5 Bq/kg in any of these 150 most consumed products, additional testing for at least strontium and plutonium will be conducted.

e. If a sample is referred 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
JapanOther countriesDomestic
Certificate of caesium and iodine testing for food products from 13 prefectures and fishery products from 8 prefectures.

[SEE IMAGE IN SOURCE DOCUMENT]

AT-THE-BORDERPRODUCTION STAGE
JapanOther countriesDomestic
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
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

[SEE IMAGE IN SOURCE DOCUMENT]

POINT-OF-SALE
JapanOther countriesDomestic
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 question 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 maintained 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 provisionally adopt sanitary or phytosanitary measures on the basis 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 Japan did not make a claim under Article 5.1, Korea submits that the insufficiency of scientific evidence is a relevant factor510 that the Panel would need to consider in evaluating Japan's claims with respect to Article 2.3511; Article 5.6512; and Article 8 and Annex C(1)(a) and C(1)(e).513 Korea argues that as Japan bears the 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 Articles 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 dispute.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 measure 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 bypass 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 that the requirements of that provision have been satisfied.519
7.72.
The third 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 unjustifiably 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 achieves the ALOP or is technically feasible.520 New Zealand argues that 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 different 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 requirements 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 New 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 also 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 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 inconsistency 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 Article 2.2.527 In both Japan – Agricultural Products II and Japan – Apples it was the responding party that invoked Article 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 for 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 were irrelevant, and expend considerable time disproving its applicability simply to forestall such a litigation tactic being employed. This would generate considerable additional work for the parties and the panels 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 assessment 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 burden 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 adopt 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 assessment of risk. Fourth, the Member maintaining 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 clarified that mere scientific uncertainty regarding aspects of the risk addressed is insufficient to trigger the application of Article 5.7.533 Furthermore, in US/Canada – Continued Suspension, the Appellate Body concluded "[t]he possibility of conducting further research or of analysing additional information, by itself, should not mean that the relevant scientific evidence 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 scientific 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 produced 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 that 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 Japan'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 waste, making Japan's estimates of amounts of strontium, 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 insufficiency in the scientific evidence that would justify discrimination against Japanese food products or that 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 available scientific evidence does not refute the existence of that evidence.545
7.83.
The Panel notes that it is not looking 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 conduct 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 radionuclides 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 accident. In that regard, Korea argues that there continues 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 claim (namely those on Alaska pollock from Fukushima and Pacific cod from Aomori, Iwate, Miyagi, Ibaraki, and Fukushima) to mirror those internal restrictions imposed by Japan. Japan imposed (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 monitoring 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. Table 10 summarizes the leak events that one or both parties allege to have left the FDNPP site and entered the environment550 between the initial accident and the adoption of Korea's blanket import ban and extension of the additional testing requirements in September 2013. The table includes the view of each party on the possible impact of each particular leak event and on whether it actually reached the ocean. For one leak in August 2013, Korea disputes 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.

Table 10: Leak events at the FNDPP from Apr. 2011 – Sept. 2013 that are alleged to have reached the ocean551

DateLeak EventWater 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
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 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 Korea'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 presence 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 water was leaking into the ocean on 19 June when it found strontium and tritium in a monitoring well at a turbine complex within the FDNPP.556 TEPCO informed the public of these test results, but 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 readings 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 should 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 absolute levels of strontium being released.562 Several sources also indicated 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 adoption of the 2013 measures. The Panel also notes that sea water monitoring data at the FDNPP site, the ERD data, the UNSCEAR data564, and other scientific studies as to the on-going environmental 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 released in the FDNPP accident is not an important issue as it is far more useful to perform measurements on the foods.566 Ms Brown noted 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 amounts of later releases were 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 potential 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 to a determination of the contamination levels in particular food products.570 The experts emphasized 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 on the effects of exposure to low doses of radiation, the ICRP and others acknowledge that this 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
7.94.
We understand Korea's reference to the 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 stated 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 measure (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 radioactive contamination into the environment – on land or water – 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 commerce. We recall the detailed, frequent, and public seawater 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 detected 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 Panel 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 insufficient 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 caesium, iodine and strontium following the Fukushima Dai-ichi nuclear power plant accident, limited information about the 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 and 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 for 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; data 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 TEPCO'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 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 every day; (ii) uncertainties pertaining to how the situation 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 from 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 if the two are contradictory.580 Therefore, at least 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 Codex 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, uncertainties, 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 measure within a reasonable period of time, the Appellate Body clarified that these two conditions "relate to the maintenance of a provisional SPS measure and highlight the provisionalnature 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 guarantee specific results. Nor is it expected to predict the actual results of its efforts to collect additional information at the time when it adopts the SPS measure. Finally, the Member taking the provisional SPS measure must review it within a reasonable period of time.584585

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 difficulty 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 Article 5.7 in 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 argues that Korea has not been proactive in either seeking to obtain new information or in reviewing such information. With regard to the requirement to seek to obtain additional information, Japan submits that, with the exception of the activities of the Korean /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 the Korean/Civilian Expert Group, which according to Japan would demonstrate that the available evidence 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 continuously review their provisional SPS measures, Japan argues that Korea scheduled in February 2014 a plan for review of its measures within 14-18 weeks but has not yet conducted such a review.592 The Panel asked Korea whether it had reviewed its measures since they were 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 no 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 year 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 to 2011.598 In particular, Korea notes in the list of activities that Japan responded 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 explaining its measures to Japanese emissaries rather than Korea seeking information 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 Radiation Safety Management for Japanese Food Imports from February 2014 also mentions 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 relation 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 announced the formation of a private-sector led expert committee to analyse the materials provided by Japan, the opinions of the public, and if necessary conduct field 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 was 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 activities of the Civilian Expert Group.601

7.106.
In light of Korea's clarification of the 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 Government of Korea, Korea also explained that "[t]he Civilian Expert Group voluntarily 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 information 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 review 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, the 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 increase, 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 blanket 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 of time. As none of the measures fulfils all four cumulative elements of Article 5.7, the Panel finds that Korea's measures 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

3 For purposes of paragraph 6 of Article 5, a measure is not more trade-restrictive than required unless there is another measure, reasonably available taking into account technical and economic feasibility, that achieves the appropriate level of sanitary or phytosanitary protection and is significantly less restrictive to trade.

7.115.
Annex A(5) of the SPS Agreement defines the "appropriate level of sanitary or phytosanitary protection" ("ALOP") as:

The level of protection deemed appropriate by the Member establishing a sanitary or phytosanitary measure to protect human, animal or plant 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 available, taking into account technical and economic feasibility, or if the alternative measure does not achieve the 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 these three elements are cumulative, they may be addressed in any order. In most prior SPS disputes, the main point of contention between the parties has been whether the measure achieves the ALOP and prior panels have begun their analysis by looking at this element. The Panel notes that if an alternative measure is not technically and economically feasible or significantly less trade restrictive, a comprehensive assessment of the alternative's ability 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 regime. Therefore, the Panel will address the first and third elements before moving on, if necessary, 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 elements, the panel will then compare them.608 It is only if the level of protection achieved by the alternative 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 contamination and contamination from additional radionuclides.611 Japan submits that in light of the absolute levels of radionuclides released in the initial accident and thereafter; information on the ratios between the additional radionuclides and caesium; and the evidence 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 requirements 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 there is any temporal limitation on the evidence Japan can rely upon in support of its claim that its alternative measure achieves Korea's ALOP.

7.7.1 Whether testing for caesium with a 100 Bq/kg limit is "another measure"

7.122.
In its second written submission, Korea argues 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 bans and the additional testing requirements 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 the additional testing requirements, Japan is conceding that both pre-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 qualitatively distinct measure than two rounds of testing (one for 0.5 Bq/kg of caesium and iodine 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 overly 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 support 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 that 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 regime 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.

Table 11: Comparison of the existing measures and Japan's proposed alternative

Existing MeasuresJapan'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 consistency 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 materialized at the time 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 further points to a number of cases, in which panels have 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 claims 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 support 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 the 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 second dispute to address evidence that was available during 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 obligations in Article 3.4 of the DSU, which requires the DSB's recommendations and rulings to "be aimed at achieving a satisfactory settlement of the matter" and Article 3.7 of the DSU, which states that the objective 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 changes 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 DSU 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 establishment. 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 Articles 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 contemplates 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 when 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 where it argues 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 expressly dealt with this question in the SPS context and have decided to limit their evaluation to the factual 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 panel 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 the 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 assessed 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 make a cognizable claim of a breach in their panel request. Although complainants do not have to delineate 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 inconsistency. 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 situation existing at the time of the establishment of a panel.642 They may challenge new measures that were adopted since the 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 process 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 and 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 about a prompt resolution of the dispute.646 If the Panel were to continually accept new evidence and then, as due process dictates, allow the other party a meaningful opportunity to comment on it647, the proceedings might never end. Hence, the Panel does not see that 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 systemic 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 Korea'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 proof that its 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 remains 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 rely on post-establishment evidence to demonstrate that 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 Panel issues a recommendation with regard to Korea's measures.653
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 was 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 available 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, even 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 submission658 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 Panel 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 is 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

7.148.
Korea responded: "Korea reiterates that Japan's proposed measure does not achieve Korea's ALOP and 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 established 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 trade 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 requirement 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 unnecessary 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 in 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 samples 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 context 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 may manifest itself in a number of ways and that a determination 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 context 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.
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 that 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 awaiting test results or a more likely alternative to 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 become available.678 Thus, Japan argues that the additional testing requirements makes 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 conduct 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 instead 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 testing rather than a function of the trade restrictiveness 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 when 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 explained 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 radionuclides. 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 could 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 required 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 threshold that denotes the position of the relevant 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 generically 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 with insufficient precision, then "the appropriate level of protection may be established by [the panel] on the basis of the level of protection reflected in the SPS measure actually applied".691 However, panels must remember that the "appropriate level of protection determines the SPS measure to be introduced 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, instead 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 recognized that "any sanitary measure applied to a given situation inherently reflects and achieves 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 explanatory material (issued by MFDS in 2014 and 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 Koreans "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 radioactive 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 level 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 foods 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 levels 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 quantify the highest radiation exposure it is willing 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 "optimisation of protection is the process by which 'the likelihood 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 factors'".704 Korea cites to the European ALARA Network 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 that 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 economic considerations.705

7.167.
Ms Brown explained that the 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 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 situations to keep the exposure below 1 mSv/year. The ICRP applies 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 Codex 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 environment 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 nuclear 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 referred 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 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 Codex applied the ALARA principle when arriving at the dose limit for all radionuclides (1 mSv/year) and the guideline levels for the individual radionuclides. 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 reflected 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 consumed 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 whether 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 Member could have adopted a less trade-restrictive measure.720
7.175.
Having clarified the standard of review under Article 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 guidance as to how the Panel should approach this question. In particular Annex A(4) defines a risk assessment in this context as the evaluation of the potential for adverse effects on human health to arise from the presence of contaminants (e.g. radionuclides) in food. Article 5.1 also notes that the risk assessment techniques of the relevant international organizations should be taken into account. Article 5.2 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 also bears in mind that the Appellate Body has stated that the scope and method of an assessment may be informed 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 criteria 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 relevance in the four steps for risk analysis developed by Codex, which are a risk assessment technique developed by a relevant international organization, as a recognized and accepted approach for analysing food safety risk726 that the Panel will take into account. In particular, the four steps are: (i) Hazard identification727; (ii) Hazard characterization728; (iii) Exposure assessment729; and (iv) Risk characterization.730 The Panel finds these steps are an appropriate and logical way to structure its analysis of the factors Korea provided.
7.178.
Therefore, in determining whether Japan's proposed alternative measure achieves Korea's ALOP, the Panel will examine (i) the identification and characterization of the contaminants at issue; (ii) the levels of contaminants in Japanese food products; (iii) the extent to which Korean consumers 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 determine whether taken as a whole, Japan has established that testing for caesium alone at a level of 100 Bq/kg would be 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 blanket 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 to 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 conformity 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 radionuclides released, also called the "source term", comprises radionuclides released from the cores and confining structures into the environment 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 released 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 definitively regulate Cs-134; Cs-137; I-131; Sr-90; and Pu-239 and 240.
7.184.
Approximately 17.5 Pbq of Cs-134 and 15 Pbq of Cs-137 were released into the atmosphere. Caesium was the radionuclide released in the greatest absolute numbers as well as in the largest proportion to other radionuclides.735 In the initial accident 150-160 PBq of I-131 is estimated to have been released. We recall that I-131 has a half-life of 8 days. Therefore, after 80 days, only 0.1% of the original I-131 activity would remain.736 I-131 was not released in significant amounts after the reactor was shut down.

Table 12: Estimates of radionuclides released from the FDNPP

Codex radionuclideEstimated core inventory in Fukushima reactors 1 -3 (PBq)NE=Not EstimatedEstimated release into the atmosphere (PBq)NE=Not EstimatedDetected 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 IAEA 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 largest 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 estimated 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:

[O]nly a few samples collected after the Fukushima Daiichi accident showed the isotopic signature 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]) corresponded 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 release of Pu-239 and 240 during the accident.745
7.189.
With respect to plutonium in the ocean, Japan also refers 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 released as opposed to 10s of Pbq of caesium (1 million 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 also 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 soil 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 potential for future leaks must also be assessed. Because the situation at the FDNPP is dynamic and ever changing, Korea implies that the risk in food products cannot be assessed with sufficient certainty to conclude that Japan's alternative measure achieves Korea's ALOP.
7.192.
The experts explained that examination of the source term to understand what radionuclides were released is important in determining what measures to apply for radiological protection purposes, such as developing a monitoring strategy750 or production and distribution restrictions. The experts concurred that after the initial release, the source term becomes less 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 potential 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 study 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 test 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 products. Recognizing the variables in such a situation (atmospheric vs oceanic, size of release, etc...) they 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, three experts engaged by Korea seek to rebut the arguments and analysis 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 core759; detection of caesium-rich microparticles, demonstrating new and previously unknown release pathways760; seafloor sediments as a significant source of contamination, including "hot spots", where concentration levels of caesium are higher761; detection within the 20km exclusion zone of highly contaminated fish that can migrate to other areas762; Japan uses testing equipment with insufficient detection capabilities763; and that the FDNPP is an active and ongoing source of contamination764. 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 stated that actual measurements in food were what are required.766 The 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:

a. While some uncertainties remain regarding the amounts of radionuclides released from the FDNPP, the experts confirm an overall consensus about the scope of the initial 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

b. 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

c. 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

d. 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

e. As regards the instances of highly contaminated fish caught within the 20 km exclusion zone around the FDNPP, the experts 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 within the 20 km exclusion 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

f. 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

g. 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 products, the Panel recalls its explanation in section 2.2 above, that each of the radionuclides has the potential to cause stochastic effects in humans – namely cancers. The effects of specific radionuclides depend 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 remaining 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 not only the contamination concentrations in food products, but also the rate at which the contamination moves up the 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 their transfer factors dose coefficients have been developed to determine guideline 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 other sources – such as medical treatments and air travel.780 It is our understanding that the 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 radionuclides 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 takes 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 implementation 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 triggered 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 for all the radionuclides except caesium.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, namely 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 samples from every prefecture in Japan since April 2011. The ERD data has been collected since the 1960s and thus includes 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 necessarily 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 have 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 such fish would be less than 0.13 Bq/kg.789 Japan then refers to testing data on fishery products as confirmation 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 various 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 of a share of the monitoring data in comparison to fishery products791 and to note the high levels in some specific product groups – such as mushrooms and berries. With respect to fishery products, Korea maintains that not enough samples from each of the fishery products Japan is seeking market access for have been taken per year and prefecture.792
7.202.
Korea further argues that Japan's testing data contains insufficient strontium and plutonium tests to allow valid conclusions about the content of these additional radionuclides 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 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 test 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 species.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 plans 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 to 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 radionuclides 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
7.205.
The Panel notes in that regard the consensus among the 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 below 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 the 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 derived these pairings and Japan explained 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 is 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 amberjack, cherry salmon); which are product groups 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 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 the 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 Japanese 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 conclusions 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 additional 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 unexpected 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 an initial release would not be closely monitored.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 need.818 Professor Michel agrees with the need to 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 minimal quantities were released from the FDNPP to the environment. The Panel has reviewed the results of tests of some 655 samples for plutonium 239 and 240820 provided by Japan and found that none of the tested samples has been found to contain plutonium anywhere 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 the 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 from the Fukushima accident. 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 necessarily 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 expected 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 significant 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 and by focusing on the period after 2 October 2013.828 Japan responds 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 of the testing, Japan states that it has excluded from its claims fish 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 tolerance levels. No Member is required to accept products that do not achieve 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 the 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 regard that Korea does not argue that the species Japan is not challenging 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 chain (predator vs prey); are the same species, genus or classification (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 testing requirements, the Panel will examine evidence pertinent to all products. 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 exposure 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 level (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 finding strontium in excess of Codex guideline levels if caesium is less than 100 Bq/kg. The graph below shows a Merz plot for different types of fishery products. The Merz plot analyses 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 individual 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

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

[SEE IMAGE IN SOURCE DOCUMENT]

Source: Japan's slides presented at the Expert Meeting, (Exhibit JPN-245), p. 2.

7.215.
The Panel asked the experts about the relevance 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 elegant" 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 conservative ratios for potential contamination levels by the other radionuclides relative to caesium, based on information on composition of releases and on known environmental behaviour 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 the chosen intervention level is conservative enough.839

7.217.
Ms Brown also finds the method 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 adequate. The latter demonstrate that there is only a very small contribution by Sr-90. Therefore, the Scaling Factor methodology is applicable even if there is a strong scatter in 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 in Japan's monitoring programme. In this regard, the Panel also recalls its findings in section 7.6 above that there was sufficient scientific information 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 requirements 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 conclusions about the levels of radionuclides in Japanese food products. All the more, the same conclusion 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 measures 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 construed 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.

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.

FukushimaMiyagiIbarakiIwateAomori
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
Total2614115.731951.5612875.463050029120.68

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.

FukushimaMiyagiIbarakiIwateGunmaAomoriTochigiChiba
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
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
Total127260.472190045620.43932000008340000036300

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.

FukushimaMiyagiIbarakiIwateGunmaAomoriTochigiChiba
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
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
Total1267008050041400707000007580000010200

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.

FukushimaMiyagiIbarakiIwateGunmaAomoriTochigiChiba
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
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
Total136000741002060077300000575000007400

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 were in place 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" she "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 continuously 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 fungi849), the proportion of samples exceeding the 100 Bq/kg tolerance level was less than 1%, including with regard to the Fukushima prefecture.850 The Panel also finds the data to support Japan's contention that in the two quarters immediately preceding establishment 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 Prefectures2012.04~2013.32013.04~2014.3
Number of samplesNo. of samples more than limitExcess ratioNumber of samplesNo. of samples more than limitExcess 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%
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 Prefectures2014.04~2015.32015.04~2016.3
Number of samplesNo. of samples more than limitExcess ratioNumber of samplesNo. of samples more than limitExcess 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).