Statement of the Republic of Korea of its intentions to implement the recommendations and rulings on “Korea – Import Bans, and Testing and Certification Requirements for Radionuclides” in the WTO Dispute Settlement Procedures
1. On May 28 (same day Geneva time), at a meeting of the Dispute Settlement Body (DSB) of the World Trade Organization (WTO), the Republic of Korea expressed its intentions to implement the recommendations and rulings of the DSB concerning its failure to fulfill its obligations to ensure transparency when it adopted the additional import restriction measures, in relation to the dispute “Korea – Import Bans, and Testing and Certification Requirements for Radionuclides”.
2. In response, H.E. Ambassador Junichi Ihara of the Permanent Mission of Japan to the International Organizations in Geneva took note of Korea’s statement of its intentions and made a statement which is summarized as follows.
(1) As this dispute has extremely technical and scientific aspects, the Panel thoroughly and carefully analyzed the issues based on the facts, evidence and parties’ arguments as well as the authoritative views of five independent experts. The Appellate Body should have reviewed Panel’s legal findings and conclusions, taking in consideration the Panel’s good judgements.
(2) In this dispute, however, the Appellate Body leaves the dispute unresolved without judgement on the WTO-consistency of the challenged measures, failing to fulfil its function to secure a positive solution to a dispute. This is why Japan sees this case as another aspect of “overreach” of the Appellate Body. This should be corrected.
(3) The Panel’s factual findings on the safety of Japanese food products are undisputed. Given this, Japan urges all WTO Members, which still maintain restrictive measures on Japanese food products, to remove such measures immediately.
3. Following Japan’s statement, the United States stated that it shared Japan’s view that the appellate report raises concerns of Appellate Body overreaching, and invited Member’s reflection on this important systemic issue.
[Reference 1] Background of the DSB meeting held on May 28, 2019
(1) In its report issued on April 11, 2019, the Appellate Body of the WTO reversed the rulings of the Panel that the Republic of Korea’s import restriction measures were inconsistent with the WTO Agreement on the grounds of insufficiency of the Panel’s analysis (because the Panel failed to sufficiently take into account all the matters it should have considered), while upholding the Panel’s findings that the Republic of Korea has failed to fulfill its transparency obligations when adopting additional restriction measures, inconsistently with the WTO Agreement.
(2) At the DSB meeting on May 28, 2019, the Republic of Korea expressed its intensions to bring its WTO-inconsistent measures into conformity with the WTO Agreement. Japan’s statement concerning the issues arising from this dispute and the safety of Japanese food products was made in response to the Republic of Korea’s statement.
[Reference 2] Statement of intentions to implement the DSB’s recommendations and rulings
(1) Under the WTO Agreement, when any measure is found WTO-inconsistent in a report of the Appellate Body (or a panel) and the DSB recommends the Member concerned to bring its measures into compliance, the Member concerned is obliged to inform the DSB of its intentions in respect of implementation of the recommendations and rulings of the DSB within 30 days after the date of adoption of the panel or the Appellate Body report. Since a DSB meeting was not scheduled within 30 days after the adoption of the reports of the Appellate Body and the Panel on April 26, 2019, after consultations among the parties to the dispute and the Secretary to the Panel, the Republic of Korea informed the DSB of its intentions of implementation by its letter dated May 14, 2019.
(2) The Panel found that the Republic of Korea had failed to fulfill its transparency obligations when it adopted additional restriction measures in September 2013, inconsistently with the WTO Agreement. As the Appellate Body left these Panel’s findings undisturbed, the Republic of Korea’s violation of the WTO Agreement in this respect was confirmed upon the adoption of the reports of the Appellate Body and the Panel by the DSB on April 26, 2019.
[Reference 3] Timeline and outline of this case
(1) Following the Fukushima Daiichi Nuclear Power Station accident in March 2011, the Republic of Korea introduced import restriction measures on products imported from Japan including fishery products. In September 2013, the Republic of Korea adopted additional restriction measures: (i) banning importation of all fishery products from eight prefectures (see below) and (ii) extending the requirements for additional radionuclides testing to all Japanese food products including fishery products.
(Eight prefectures: Aomori, Chiba, Fukushima, Gunma, Ibaraki, Iwate, Miyagi and Tochigi)
(2) Considering these measures would be inconsistent with obligations under the WTO Agreement, in May 2015, Japan requested consultations with the Republic of Korea pursuant to the WTO dispute settlement procedures. Following the consultations in June 2015, Japan requested the establishment of a panel in August 2015. In September 2015, the Panel was established.
(3) In February 2018, the Panel Report was circulated to WTO Members. The Panel Report found that the Republic of Korea’s import restriction measures were inconsistent with the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), and recommended that the Republic of Korea bring its measures into conformity with its obligations under the SPS Agreement.
(4) In the WTO dispute settlement system, the parties to a dispute can appeal issues of law covered in the panel report to the Appellate Body. The Republic of Korea appealed certain issues of law contained in the Panel Report to the Appellate Body in April 2018.
(5) The Appellate Body Report issued on April 11, 2019, reversed certain findings made by the Panel.
(6) In accordance with the relevant provision of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), the Appellate Body Report and the Panel Report as partially modified by the Appellate Body were adopted at the DSB meeting on April 26, 2019.