[Lee Jae-min] Seeking scientific rationale

Can a government address consumers’ concerns over imported products because of a health reason? Of course it can. Governments have always done so and will do so in the future. That is exactly what ordinary people will expect of any responsible government. The real question, however, is how to exercise this authority.

As noted before, the regulatory guideline for this very issue is found in the Sanitary and Phytosanitary Agreement of the WTO. To make a long story short, the agreement basically stipulates that any country can exercise this authority, but a decision to impose an import restriction should be supported by “scientific evidence.”

The agreement is carefully drafted to exclude import restrictions stemming from an emotional or unsubstantiated response. Ever since Korea’s imposition of an import ban on fisheries products from eight prefectures of Japan since early September, the application of this agreement has been another source of tension between the two countries, including the possibility of Japan’s lodging of a formal protest at the WTO litigation proceeding.

Viewed from this angle, the IAEA assessment team’s recent announcement that it is effectively vouching for the safety of the fisheries products from Japan may offer an important piece of puzzle as to how the international scientific community would perceive the risk from the fisheries products. Obviously, an assessment of an international organization in the area of nuclear science should be a meaningful barometer in scientific discourse. Many countries dealing with the fisheries imports from Japan will accord significant weight to the findings of the IAEA.

The IAEA’s position will raise Japan’s challenges by another notch. After all, one of the international organizations tasked with scientific issues has spoken officially. It is now gradually becoming Korea’s turn to come up with its own scientific rationale, whether confirmed or temporary, to sustain the import ban. To remain in compliance with the obligations under the said agreement requires an affirmative action as opposed to a repetition of consumers’ concerns or civic groups’ demands. For better or worse, the provisions at issue here are highly technical and not so receptive to the concerns per se, unless accompanied by scientific justification.

One thing to note here is that the findings of the IAEA may not be conclusive in the SPS jargon, given that what was reviewed this time was the “management of the contaminated water.” It seems that how the previous discharge may have impacted the fisheries products being imported today has not been evaluated. In any event, the IAEA’s announcement has certainly raised the threshold for Korea to meet.

Again, the threshold is not whether the measure is emotionally or politically correct; rather, it is whether scientific evidence is out there to support a country’s import ban. Addressing consumers’ concerns is necessary but how to address them should dovetail with the science in that area. Korea has focused on the first part of the question, and now it is time for the second part.

Recent trade disputes are replete with the examples in which ostensibly necessary import restrictions to respond to demands from consumers have been found to be in deviation of the treaty obligations. Sometimes legitimate governmental objectives have been criticized in the mires of technical requirements embedded in the agreements. The valuable lesson to be elicited from other countries’ experiences is that the legitimacy of an import ban hinges upon satisfying the stipulated requirements. This is the only way to reflect otherwise important consumer concerns within the confinement of treaty obligations.

The IAEA announcement is now turning the attention to Korea: How does it respond and what is in its dossier?

By Lee Jae-min 

Lee Jae-min is an associate professor of law at Seoul National University. ― Ed.