방사성물질 해양 방류로 인한 일본 전역의 수산물수입금지 입법과 WTO

The WTO Korea-Japan conflict over radioactive marine products (WT/DS495) represents the first case in which the accused nation has maintained its Sanitary and Phyto-sanitary (hereinafter “SPS”) Measures. The Korean government’s reaction of overturning the panel’s judgment on all key issues during the appeal stage by scrutinizing the loopholes in the panel’s reasoning is considered commendable. However, the Appellate Body did not reassess the factual relationship after reversing the panel’s decision. As a result, whether the Korean government’s measure aligns with the SPS agreement has not been assessed by the Appellate Body. The Appellate Body’s attitude can be interpreted in two ways. First, some perceive it as an expression of judicial restraint to tolerate the Korean government’s sovereignty to protect their citizens from food safety concerns following Japan’s nuclear explosion accident. Second, some assume that the appellate body did not intentionally examine the factual relationship regarding the Japanese government’s adoption of a GATT-type litigation strategy (claiming discrimination and unnecessary trade restriction) in the SPS agreement dispute, which should have been addressed on scientific grounds. The possibility of the WTO violation arising from the worldwide ban on seafood imports from Japan by other countries does not necessarily lead to the likelihood of a WTO complaint; various factors such as political, diplomatic, and economic considerations come into play. In the context of the WTO Korea-Japan radioactive seafood dispute (WT/DS495), it is anticipated that the likelihood of Japan filing a WTO complaint will increase if the import of Japanese seafood significantly declines for an extended period. Additionally, Japan will need to consider the potential for a lengthy resolution process, which may take around four years, in the WTO dispute settlement. If South Korea were to implement a nationwide ban on seafood imports from Japan, this would not fall under the prohibition against double jeopardy as it would constitute a new dispute distinct from the previous one. In the event that Japan engages in a global seafood import ban dispute with South Korea at the WTO, stemming from the disposal of radioactive materials into the sea, it is anticipated that Japan would adopt different litigation strategies from those operating in the precedent Korea-Japan radioactive seafood dispute (WT/DS495). Instead of invoking Articles 2.3 and 5.6, Japan is likely to claim violations of Article 2.2, 5.1, and 5.7. Therefore, South Korea should gather scientifically supported evidence and arguments for a potential total ban on seafood imports from Japan in anticipation of the dispute. The International Atomic Energy Agency (IAEA), an independent body under the United Nations, released its final report in July 2023, stating that Japan’s disposal of radioactive materials into the sea complies with international standards and has negligible impact on people and the environment. If the IAEA verification data are deemed reliable and the evaluation criteria are appropriate, the results serve as scientific evidence to demonstrate that the disposed materials from an accident at a nuclear power plant are identical to those from normal operations. However, despite the IAEA verification results, there is an ongoing need for continuous validation regarding the potential environmental risks posed by the ocean disposal of radioactive materials and its impact on seafood. Given the inherent possibility of errors and changes in circumstances during the process of Japan’s disposal of radioactive materials, subsequent scientific verification and assessment results may carry superior evidential weight compared with the 2023 IAEA verification results.