Sustainable Development in World Trade Law: Application of the Precautionary Principle in Korea-Radionuclides

Abstract

Sustainable development (SD) is one of the objectives of the World Trade Organization (WTO), and in order to achieve SD, the precautionary principle (PP) is one of the most appropriate means that can be used. This study aims to explore whether the WTO promotes SD through its legal interpretation of the PP and to provide suggestions for realizing the balance between trade liberalization and sustainable development in the WTO. To this end, this study conducts a case analysis on the Korea-Import Bans, and Testing and Certification Requirements for Radionuclides (DS495) dispute from legal and political-economic perspectives, and finds that the WTO’s rigorous examinations of the four requirements presented in Article 5.7 of the Agreement on the Application of Sanitary and Phytosanitary Measures (the SPS Agreement) remain a significant impediment for the incorporation of the PP into WTO jurisprudence, and can also cause systemic problems. This study suggests that efforts from three dimensions—the WTO adjudicating parties, the government, and the lobbying groups of importing countries—are required to promote SD in the WTO.

Fishy SPS Measures? The WTO's Korea – Radionuclides Dispute

“…In the wake of the reactor meltdown, the Japanese government and other WTO member governments adopted SPS measures to address the threat that contaminated food would be a health risk to consumers. Korea initially applied a radiation testing regime to most food products originating in any part of Japan (Cai & Kim 2019). In 2012, it imposed an import ban on Pacific cod and Alaska pollack from five of the affected prefectures.…”

“…5 In the three years before the earthquake, Korea was the one of the largest importers of Japanese fishery products with a 16% share, along with China (21%), the United States (15%), and Hong Kong (10%). 6 However, Korean imports of Japanese fish production were already on the decline due to increased domestic supply and other factors (Cai & Kim 2019). In the three years after the earthquake, Japan's seafood exports to Korea fell by 42% compared to that prior three-year period, as compared to a 15% reduction to China, a 10% increase to the United States, and a 26% increase to Hong Kong (which re-exports 30-40% of its seafood imports, largely to China).…”

“…First, Japan would want to select an important export market. Governments generally want to receive the greatest return on their investment in WTO adjudication, so Japan would want to select a respondent state where the return of market access would significantly help the affected industry (Cai & Kim 2019). Second, a legal victory could bring greater bargaining leverage in negotiations with other trading partners with similar measures.…”

“…Korea initially applied a radiation testing regime to most food products originating in any part of Japan (Cai and Kim, 2019). In 2012, it imposed an import ban on Pacific cod and Alaska pollack from five of the affected prefectures.…”

An Incursion into Actuality: Addressing the Precautionary Principle in the Context of the Circular Economy

“…Despite the differences of opinion, the wide range of areas in which the mentioned principle operates is noticeable. It has been attached to general aspects of environmental and health policies [35]; used to target specific environmental and health issues (ocean dumping of pollutants, human exposure to radiofrequency fields) [34]; used to generate new approaches in the context of rising global temperatures and the greenhouse effect [32]; invoked in the banning of certain categories of pesticides, the protection of endangered species, the management of fisheries, and more recently, the context of evolving technologies dedicated to commercial drones [43]; applied in the field of food security and trade policies [44]; invoked in the protection of the ozone layer, the conservation of biodiversity, the application and identification of the degree of safety of new technologies, as an intervention in the problem of genetically modified organisms (GMOs) [43], and in the protection of health and food consumption (consumer and health protection) [34]; and used as a mechanism for promoting sustainable development [45].…”