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

685 Japan's and Korea's responses to Panel question No. 31. In its response Korea indicates that several government agencies are capable of conducting the additional testing, but did not confirm that they would conduct testing on imported products.

686 Appellate Body Report, Australia – Salmon, para. 206.

687 Panel Report, India – Agricultural Products, para. 7.562.

688 Appellate Body Report, Australia – Salmon, para. 206.

689 Panel Report, Australia – Apples, para. 7.970.

690 Panel Report, US – Poultry (China), para. 7.244.

691 Appellate Body Report, Australia – Salmon, para. 207.

692 Appellate Body Report, US/Canada – Continued Suspension, referring to Appellate Body Report, Australia – Salmon, para. 206.

693 Appellate Body Report, India – Agricultural Products, para. 5.226.

694 Appellate Body Report, India – Agricultural Products, paras. 5.219-5.224.

695 Panel Report, Australia – Salmon, para. 8.107; see also Panel Report, EC – Hormones (US), para. 8.168 and Panel Report, EC – Hormones (Canada), para. 8.171; Panel Report, Australia – Apples, para. 7.975.

2015), all of which described 1 mSv/year as the dose limit for the general public.⁶⁹⁶ Korea also informed Japan by letter on 15 September 2014 that "its ALOP for exposure to radiation from the ingestion of food contaminated with radionuclides is based on the Codex Standards."⁶⁹⁷

7.162. Korea describes its ALOP as to maintain radioactivity levels in food consumed by 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

696 Japan's first written submission, para. 338.

697 Japan's first written submission, para. 339.

698 Korea's first written submission, para. 234.

699 Korea's opening statement at the second meeting of the Panel, para. 53.

700 Korea's opening statement at the second meeting of the Panel, para. 53.

701 Korea's opening statement at the second meeting of the Panel, para. 53.

702 Korea's response to Panel question No. 140.

703 Korea's first written submission, para. 234.

704 Korea's response to Panel question No. 57(b).

705 Korea's response to Panel question No. 57(b) (citing European ALARA Network, Newsletter 31:

Development and dissemination of ALARA culture, (Exhibit KOR-140)).

706 Ms Brown's response to Panel question No. 10(a) to the experts; see also Expert Meeting Transcript, para. 2.1.

easily discernible end point and that it cannot itself be used as an international standard for food acceptance.⁷⁰⁷

7.168. Professor Michel noted that the ICRP has not given a lower limit for optimization, but declared the long-term goal in existing exposure situations to keep the exposure below 1 mSv/year. The ICRP applies this goal to the most exposed individuals in a population (95^th 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

707 Expert Meeting Transcript, para. 1.7.

708 Professor Michel's response to Panel question No. 10(a) to the experts.

709 Expert Meeting Transcript, para. 2.1. Ms Brown also noted "there will always be political or social pressure in a country to keep reducing doses. I think what is important here is for trade between countries there has to be some numerical value set in order to establish the movement of food and how much

radionuclides they contain. This is why we have the Codex guideline levels for international trade." See Expert Meeting Transcript, para. 2.4.

710 Korea's response to Panel question No. 58 (ii).

711 Korea's response to Panel question No. 58 (iii); second written submission, paras. 260-264. The Panel notes in this regard, that Korea makes no reference to the Chernobyl nuclear accident or how this is accounted for in its ALOP.

712 Dr Skuterud's response to Panel question No. 11 to the experts.

713 Ms Brown's response to Panel question No. 11 to the experts.

714 Dr Skuterud's response to Panel question No. 11 to the experts.

715 See Ms Brown and Professor Michel's responses to Panel question No. 11 to the experts. The Panel notes that Korea does not claim to have determined the additional contribution to background levels from the Fukushima Dai-ichi accident.

716 The Panel makes this conclusion in light of the prerogative for Members to determine their own ALOP. However, the Panel notes that although Korea referred the Panel to the Korea Food Code where Korea expresses its adherence generally to the ALARA principle, Korea has not provided the Panel with any evidence that this ALOP, as articulated, pre-existed the onset of this proceeding. The Panel has received no

documentation of how Korea developed its ALOP or where this ALOP is set forth in its internal legislation or regulations. cf Panel Report, Australia-Apples, para. 7.963 referencing Australia's Import Risk Analysis

Handbook Australia's ALOP for imported food products; Panel Report, US – Poultry (China), paras. 7.242-7.243 referencing the Poultry Products Inspection Act 21 USC 466 for the United States' ALOP for Poultry; Panel Report, US – Animals, para. 7.378 referring to 7 USC 8303(a) for the United States' ALOP for animal diseases;

its background radiation (or 0.35 mSv/year) is attributable to food products, and therefore it aims to keep exposure from additional external sources "as low as possible below 1 mSv/year".⁷¹⁷ We appreciate Korea's adherence to the ALARA principle. We note that both the ICRP and 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.