Radioactive Fish: The Latest China-Japan Trade Dispute

Japan began its second release of treated wastewater from the Fukushima nuclear plant on October 4, 2023. Despite Japan’s assurances that the wastewater was safe, China refused to lift its ban on imports of Japanese seafood, setting up a potential fight at the World Trade Organization (WTO).

In 2011, an earthquake and tsunami struck the Fukushima Daiichi nuclear power plant, causing a meltdown in three reactors. Today, the plant houses over 1.2 million metric tons of leftover radioactive wastewater from that disaster.

Earlier this year, Japan began treating, diluting, and releasing that wastewater into the Pacific Ocean. The first release occurred in late August. In October, Japan plans to treat and dump 7,800 metric tons of wastewater over 17 days.

After the first release, China immediately banned all imports of seafood from Japan, citing health and food safety concerns. China accounts for over 20% of Japanese seafood exports, making it the largest destination for Japanese exporters. The Japanese government responded by approving a 20.7 billion yen emergency fund to help seafood exporters find new markets.

“We are undecided whether to file a complaint to the WTO immediately. At any rate, we hope to find a resolution within the WTO framework,” said Japanese Agriculture Minister Ichiro Miyashita. Separately, Economic Security Minister Sanae Takaichi hinted that Japan would try diplomatic negotiations before filing a formal complaint to the WTO.

The WTO’s General Agreement on Tariffs and Trade (GATT) promotes non-discriminatory trade between its members. It stipulates that one country cannot ban imports of a product from another particular country, as that unfairly discriminates against the exporting country. However, there are exceptions to this rule.

For food safety in particular, the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) allows countries to impose trade barriers in order to protect “human, animal or plant life or health.” If Japan were to challenge China’s seafood ban at the WTO, China would likely justify its ban under the SPS by arguing it protects human health. However, there are serious problems with applying this legal defense to China’s seafood ban.

According to the SPS, if a country violates WTO rules to protect health or life, it must have “sufficient scientific evidence.” In this case, there is no indication that China conducted any scientific risk assessment or study before implementing its ban. Despite Japan’s repeated requests, China has not presented any scientific evidence to date to justify its decision.

Most scientists say that Japan’s method of releasing the wastewater presents negligible risks to the environment or humans. “I would call it not a risk at all… the doses that the ecosystem [gets] just won't be significant,” said Jim Smith, a professor of environmental science at the University of Portsmouth.

If China lacks sufficient scientific evidence, how could it defend its ban? The SPS states that even if countries lack sufficient scientific evidence, they could use “available pertinent information, including that from the relevant international organizations.” According to former WTO Appellate Body Chairman James Bacchus, this would be where China hangs its legal hat in any upcoming litigation.

This argument presents its own set of problems for China. In July, the International Atomic Energy Association (IAEA) released a comprehensive assessment that concluded that Japan’s wastewater releases were consistent with IAEA Safety Standards. The assessment was designed by an IAEA Task Force of internationally recognized nuclear safety experts and took two years to complete. In other words, the relevant international organizations side with Japan, not China.

The bottom line is that, if Japan challenges China’s seafood ban at the WTO, China will most likely lose. China knows this too. So why are they refusing to remove the ban on Japanese seafood? One potential explanation is that China’s ban has nothing to do with health. China may simply want to provide an advantage to Chinese fisheries by protecting them from foreign competitors, at least until the WTO forces it to stop.

If Japan chooses to challenge China’s ban, the implications may range far beyond seafood.  According to Bacchus, this case may force the WTO to specify the boundaries of the SPS Agreement. In defining what qualifies as “sufficient scientific evidence” or an “acceptable risk assessment,” this case may affect how countries use trade barriers to protect human health in the future.