Analysis of potential future litigation between Japan and China on the issue of a total ban on aquatic products after Fukushima water release

초록

This article examines a potential dispute between Japan and China under the dispute settlement system of the World Trade Organization. The issue arose due to the Japan’s decision to discharge ALPS treated water into the Pacific Ocean and China’s opposition which resulted in an import ban on all Japanese aquatic products. Particularly, this examination is based on provisions of Articles 2.2, 2.3, 5.6 and 5.7 of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures. Referring to the interpretation and application of these articles by previous Panel and Appellate Body’s members in previous WTO cases, this paper analyzes the potential outcome of a possible litigation between Japan and China. In relation with Article 2.2, a potential dispute revolves around the matter of whether China based its import ban on scientific principles. While Japan may argue that China’s import ban lacks a scientific basis, the precautionary principle and concerns about potential risks can be used as justification by China. In response, Japan may argue that the discharge of tritium on a global level makes China’s ban arbitrary which violates the non-discrimination provision of Article 2.3. Subsequently, Article 5.6 focuses on the importance of the Appropriate Level of Protection and provides Japan’s obligation to propose an alternative measure which must satisfy all three cumulative elements of Article 5.6. Lastly, Article 5.7 gives China a potential defense by allowing the reliance on the provisional adoption of measures based on the grounds of insufficiency of scientific evidence. In conclusion, this analysis shows possible obstacles and challenges that Japan may face in referring to adjudication under the WTO dispute settlement system including proving discrimination, a lack of a scientific basis, proposals of alternative measures under Article 5.6 and the potential use of Article 5.7 by China.

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