Korea's response to the FDNPP accident

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

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

240 Korea Food and Drug Administration, Press Release, "Status of KFDA's Response and Management Measures Regarding the Japanese Nuclear Crisis (5)" (14 April 2011), (KFDA 14 April 2011 Press Release), (Exhibit JPN-55.b (revised)), (Exhibit KOR-72 (revised)).

241 Korea National Fishery Inspection Services, "Notification of Strengthened Inspection on Fishery Products Originated from Japan" (4 May 2011), (Exhibit KOR-75).

242 Japan and Korea's responses to Panel question No. 127.

243 KFDA 14 April 2011 Press Release, (Exhibit JPN-55.b (revised)), (Exhibit KOR-72 (revised)).

244 For Cs-134 and Cs-137, the level applied by Korea was 370 Bq/kg before 1 April 2012 and 100 Bq/kg after; for I-131, the level remained unchanged and is 300 Bq/kg.

245 Chiba, Fukushima, Gunma, Miyagi, Ibaraki, Kanagawa, Nagano, Niigata, Saitama, Shizuoka, Tochigi, Tokyo and Yamagata. See KFDA 2011 Instruction on new certification requirements for Japanese food, (Exhibit KOR-40.b).

246 KFDA 14 April 2011 Press Release, (Exhibit JPN-55.b (revised)), (Exhibit KOR-72 (revised)), p. 2.

247 Korea National Fishery Inspection Services, "Notification of Strengthened Inspection on Fishery Products Originated from Japan" (4 May 2011), (Exhibit KOR-75).

248 In June 2012, five prefectures were excluded from the list of the thirteen prefectures decided on 14 May 2011 and seven prefectures were added to the same list. This amounted to 15 prefectures that required a pre-export certificate for caesium testing. In October 2012, one prefecture was excluded from the

either as a result of monitoring in Japan or of import inspection in Korea, amounting to 16 prefectures²⁴⁹ by mid-2013.²⁵⁰ Following the application of a blanket import ban (see section 2.7.7 ) in 2013 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

list of 15 prefectures decided in June 2012 and two prefectures were added to the same list; Japan's and Korea's responses to Panel question No. 111(c).

249 Aichi, Aomori, Chiba, Ehime, Fukushima, Gunma, Hokkaido, Ibaraki, Iwate, Kagoshima, Kanagawa, Kumamoto, Mie, Miyagi, Tochigi and Tokyo; Japan and Korea's responses to Panel question No. 111(c).

250 Korea Ministry of Food, Agriculture, Forestry and Fisheries, "Notification of adjusted areas subject to radioactive material inspection certificate requirements for Japanese fishery products" (26 September 2012) (Redacted), (Exhibit KOR-76 (revised)).

251 See KFDA 14 April 2011 Press Release, (Exhibit JPN-55.b (revised)), (Exhibit KOR-72 (revised)). The 13 prefectures for which pre-export testing was originally required for fisheries products are: Miyagi,

Yamagata, Niigata, Nagano, Saitama, Kanagawa, Shizuoka and Tokyo-to, in addition to Fukushima, Ibaraki, Tochigi, Gunma and Chiba. Subsequent to this press release, on 1 June 2012, Yamagata, Saitama, Niigata, Nagano and Shizuoka were removed from the list of prefectures required to undergo pre-export testing, and Hokkaido, Aomori, Iwate, Mie, Ehime, Nagasaki, and Kumamoto were added to the list. On 15 October 2012, Nagasaki was moved from the list of prefectures subject to pre-export testing requirements and the

prefectures Kagoshima and Aichi were added. According to the information provided, the Panel understands that the prefectures subject to pre-export testing have not changed since this time. On 6 September 2013, Korea's blanket import ban was applied to fisheries products from Aomori, Iwate, Miyagi, Fukushima, Ibaraki, Tochigi, Gunma and Chiba, and as such pre-export testing was no longer relevant. See Korea's Ministry of Food, Agriculture, Forestry and Fisheries, "Notification of adjusted areas subject to radioactive material inspection certificate requirements for Japanese fisheries products" (26 September 2012) (redacted), (Exhibit KOR-76) and Korea's Ministry of Food and Drug Safety, Press Release, "Notice of Temporary Special Measure for Safety for Food Imported from Japan" (6 September 2013) (English translation), ("MFDS notice for 2013 blanket import ban and additional testing requirements"), (Exhibit JPN-75.b).

252 See Japan's first written submission, para. 127 and footnote 192.

253 Japan's response to Panel question No. 111(c).

254 Korea's comments on Japan's response to Panel question No. 111(c).

255 During the second meeting, Korea indicated that for certain commodities (mushrooms, blueberries) from certain countries (Ukraine, Belarus, their neighbouring countries; and China), caesium is tested more frequently at the Korean border than for most food imports from third sources. See Korea's response to Panel question No. 23 and Korea's comments on Japan's response to Panel question No. 136 which specified the frequency of caesium testing for food imports from third countries.

256 Korea Food and Drug Administration, Press Release, "Import-stage Radiation Inspection on Fresh Agricultural/Forest Production Originating in Japan Enhanced" (14 March 2011), (Exhibit JPN-82.b).

basis.²⁵⁷ A few days 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".

257 Korea Prime Minister's Office, Press Release, "Prime Minister Hwang-Shik Kim Demand Stringent Inspection of Imported Food Products" (23 March 2011), (Exhibit JPN-84.b).

258 Korea Food and Drug Administration, Press Release, "KFDA Expands Scope of Radiation Inspection to Cover Dried Agricultural/Forest Products, Processed Foods, etc. from Japan" (21 March 2011),

(Exhibit JPN-83.b).

259 Korea's response to Panel question No. 129. The revised Annex B submitted with Korea's responses to the Panel questions after both the first and second meeting also assert this exception. In support of this contention Korea cites to the language of the 2011 press release announcing the additional testing requirements. In particular, Korea relies on the wording:

[w]here iodine or cesium (134Cs+137Cs) is detected in the food products but within the domestic standard limit, additional certification shall be requested to importer with analytical report which confirms that the product has not been contaminated with ‘other radionuclides such as plutonium and strontium.

See Korea Food & Drug Administration, "Instruction of Changed Measure including Certificate of Food Imports Originated from Japan", (KFDA 2011 Instruction on new certification requirements for Japanese food), (Exhibit KOR-40.b). It is not clear to the Panel that detection "at the import stage" refers to pre-export testing in Japan rather than the at-the-border testing called for in the measures.

260 See Japan's first written submission, para. 127 and fn. 192.

261 Status of KFDA's Response and Management Measures Regarding the Japanese Nuclear Crisis (5), (Exhibits JPN-55.b (revised), KOR-72 (revised)).

262 KFDA 2011 Instruction on new certification requirements for Japanese food, (Exhibit KOR-40.b).

263 Korea National Fishery Inspection Services, "Notification of Strengthened Inspection on Fishery Products Originated from Japan" (4 May 2011), (Exhibit KOR-75).

2.7.4 Expanded testing for additional radionuclides

2.100. More than two years later, in September 2013²⁶⁴, Korea adopted three additional measures:

(1) 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.

264 Korea Prime Minister's Office, Press Release, "Government Bans Import of All Fishery Products from 8 ken near Fukushima" (6 September 2013), ("PMO Blanket Import Ban and Additional Testing Requirements Press Release"), (Exhibit JPN-3.b).

265 Korea's first written submission, paras. 39-56. Korea refers to: A. Slodkowski and M. Saito, Fukushima clean-up turns toxic for Japan's Tepco, Reuters, 30 July 2013, http://www.reuters.com/article/us-japan-fukushima-nuclear-idUSBRE96T1BC20130730, (Exhibit KOR-41); A. Slodkowski and M. Saito, REFILE-Japanese utility, and the public, in dark about crippled nuclear plant, Reuters, 30 July 2013,

http://www.reuters.com/article/japan-fukushima-nuclear-idUSL4N0FZ31J20130731, (Exhibit KOR-42); J.

Adelman and Y. Okada, "Tepco President Apologizes for Fukushima Leak Disclosure Delay", Bloomberg, 26 July 2013, http://www.bloomberg.com/news/articles/2013-07-26/tepco-president-apologizes-for-fukushima-leak-disclosure-delay, (Exhibit KOR-43).

266 MFDS notice for 2013 blanket import ban and additional testing requirements, (Exhibit JPN-75.b).

267 G/SPS/N/KOR/454.

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

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

type Codex Level

(Bq/kg) Japan's caesium (Cs-134,

Cs-137) level (Bq/kg) Korea's caesium (Cs-134, Cs-137) level (Bq/kg)

Before 1

April 2012 After 1 April

2012 Prior to FDNPP accident

For Japanese imports after 1 April 2012 until present

For products from all origins (other than products from Japan) after 9 September 2013 until present General

food 1000 500 100 370 100 100

Milk and dairy products

1000 200 50 370 50 100

Beverages 1000 200 10 10 10 10²⁶⁹

2.7.6 Product-specific import bans

2.104. Korea quickly put in place bans on specific products from certain locations within Japan following the FDNPP accident. These product-specific import bans coincided with and generally followed the distribution restrictions Japan applied within its own 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 specific bans, Korea followed Japan's own product-specific distribution restrictions. Whereas the Korean product-product-specific bans are still in force, the Japanese bans for these fishery products from the prefectures at hand were removed between

269 Korea's level for caesium in beverages is based on the WHO Guidelines on Drinking Water Quality (2006).

270 Korea Prime Minister's Office, Press Release, "Temporary Import Suspension of Foods from Regions in Japan Contaminated with Radioactivity" (25 March 2011) (English translation), (Exhibit JPN-170.b). As noted previously, certain product-specific distribution restrictions in Japan remain in place and can be found at http://www.mhlw.go.jp/english/topics/2011eq/index_food_press.html, referred to in Japan's response to Panel question No. 28.

271 KFDA 14 April 2011 Press Release, (Exhibits JPN-55.b (revised)), (Exhibit KOR-72 (revised)).

272 Chiba, Fukushima, Gunma, Ibaraki and Tochigi.

273 Aomori, Chiba, Fukushima, Gunma, Ibaraki, Iwate, Kanagawa, Miyagi, Nagano, Saitama, Shizuoka, Tochigi and Yamanashi. See Korea Prime Minister's Office, Press Release, "Temporary Import Ban on food from regions contaminated by radioactivity in Japan" (25 March 2011), (Exhibit KOR-36); Korea Food & Drug Administration, "Response and Management Trends of the Korea Food and Drug Administration Related to the Nuclear Power Plant Accident in Japan" (20 March 2013), (Exhibit KOR-38).

274 Information on these products is available in Japanese on the Ministry of Agriculture, Forestry and Fisheries website: http://www.maff.go.jp/j/export/e_info/pdf/kisei_all_160718.pdf.

275 Japan's responses to Panel question Nos. 7and 28.

276 Aomori, Chiba, Fukushima, Gunma, Ibaraki, Iwate, Miyagi and Tochigi.