Arguments by Japan: China’s Measure Violates Article 2.

3 Obligations on
Arbitrary Discrimination and Disguised Restrictions

I. The Measure Imposes Arbitrary and Unjustifiable Discrimination

A. Identical or Similar Conditions Now Prevail Between China and Japan

1. Fukushima wastewater discharge has not impacted Japan’s food safety conditions

The key basis for China’s import measure is managing alleged risks to its consumers from radioactive
contamination of Japanese fishery products stemming from the discharged Fukushima wastewater.
However, the IAEA report definitively concluded that properly controlled discharge of ALPS-treated
water poses negligible radiological risk to the marine environment or human health (IAEA Press
Release, 4 July 2023).

Specifically, the IAEA review validated that:

(i) The ALPS purification process reduces concentrations of radioactive constituents to levels below
globally recognized safety standards, with further reduction during discharge by natural dilution
factors of over 100-fold (IAEA Report, pp. 55-59);

(ii) Multiple hydrodynamic dispersion models confirm radioactive concentrations in discharge zone
will remain far below the strict WHO drinking water standards (IAEA Report, pp 62-67);

(iii) Even using highly conservative assumptions, the added radiation exposure from ingesting
contaminated Japanese seafood would be less than 1 thousandth of natural background variation in
radiation and less than medical imaging procedures (IAEA Report p. 51).

2. Since the discharge has not impacted Japan’s food safety conditions, current SPS risks in Japan
do not materially differ from the rest of the world.

Hence with the IAEA’s neutral, empirical assessments dispelling asserted concerns over food
contamination, there is no evidence that SPS conditions within Japan presently diverge from global
norms in a manner warranting discriminatory treatment of Japanese exports. A WTO panel previously
confirmed differential treatment can only be justified under Article 2.3 when proper explanatory
factors exist indicating meaningfully distinct conditions (Panel Report, India – Agricultural Products,
paras. 7.281-7.283). Here, there are no material variances in contamination risks between Japanese
products and other countries’ goods.

B. Nationwide Import Ban is Arbitrary and Manifestly Disproportionate

1. No sound scientific basis for banning imports from entire Japan

As elaborated, the IAEA conclusions affirming negligible incremental risks from the controlled
Fukushima wastewater discharge remove any proper technical justification for embargoing imports
from all of Japan rather than narrowly targeting conceivably affected geographical areas. The
Appellate Body requires reasonable proportionality between alleged evidence of contamination risks
and the scope of application, finding discrimination arbitrary absent such connecting rationale
(Appellate Body Report, Korea – Radionuclides, para. 5.64). Here the IAEA effectively negated any
basis for concern regarding Japanese food exports.

2. Reasonably available alternative measures would achieve China’s ALOP

Less restrictive alternative measures were also manifestly available to China to guard against already
remote perceived contamination risks. For instance, China could impose testing requirements or
temporary import restrictions limited only to regions in closest proximity to the Fukushima facility.
However the chosen nationwide import ban is plainly disproportionate and overbroad given the IAEA
findings regarding negligible radiological impacts from properly controlled discharge conditions. The
Appellate Body ruled that discrimination under Article 2.3 can be established when less-trade
restrictive options could equally achieve the Member’s appropriate level of protection (Appellate
Body Report, Australia – Salmon, para. 138). Here, narrower restrictions on specific prefectures
would fully address speculative concerns over Japanese exports.

Hence, the facts firmly indicate China’s measure arbitrarily and unjustifiably discriminates between
Members where similar food safety conditions now prevail absent material distinctions in
contamination risks.

II. The Measure Constitutes a Disguised Restriction on Trade

A. Highly Trade-Restrictive Design and Application

While China invokes a need for precaution given the unprecedented scale of radioactive wastewater
discharge, key facts firmly contradict any inference that nationwide import prohibitions remotely
connected to addressing plausible food safety risks:

1. Extensive transparency efforts dispel uncertainties over discharge controls

In response to international concerns, Japan undertook vast efforts to validate the safety of the
planned discharge and surrounding marine environment across every stage through IAEA reviews,
accommodating multi-agency inspection visits of facilities and monitoring sites, establishing public
communication centers, and answering multiple rounds of technical questions from other countries
regarding operational parameters, data, and future commitments (IAEA INFCIRC 1084, 18 Aug
2023).
This remarkable degree of transparency and accessibility facilitated the IAEA’s comprehensive,
empirically-grounded verification of discharge safety and dispelled any objective grounds for
reliability concerns over Japan’s commitments or data so as to warrant bans on imports from
unaffected trading partners.

2. IAEA definitively confirmed control measures comply with international safety standards

Most critically regarding the factual basis for China’s restrictions, the IAEA’s intensive review
“concluded that the disposition of water containing tritium and treated water in the tanks at the
Fukushima Daiichi Nuclear Power Station to the sea, as currently planned, is in accordance with
global nuclear safety standards” (IAEA Press Release, 4 July 2023).

The agnostic IAEA assessment firmly dispels any credible doubts concerning the safety of planned
discharges or incremental risks from properly controlled emissions. This neutral, empirical
reaffirmation of international compliance flatly contravenes China’s asserted technical justification
for an import prohibition.

B. Compelling Evidence of Protectionist Intent

The extensive trade-restrictiveness manifestly divorced from discharge-related risks along with the
surrounding context arouses compelling indicia that restricting market access - rather than addressing
food safety - improperly motivated China’s prohibitions:

1. Statements reveal categorical opposition to any radioactive discharge

Chinese authorities have publicly opposed in blanket, non-qualified terms any decision to permit
controlled discharge of properly treated Fukushima wastewater. Demanding zero discharge regardless
of the mitigation of health impacts betrays an uncompromising political stance against Japanese
marine exports regardless of the enacted control measures (China Daily, 12 July 2023).

Further, labeling exposure levels 100 times below WHO drinking water standards as absurd manifests
such an extreme zero-risk preference that – taken together with the geographical overbreadth - the
prohibitions become reasonably attributable to non-SPS objectives of curbing Japanese trade.

2. Other major economies have not blocked Japanese fishery imports

While China asserts grave concern warranting sweeping import restrictions, other major economies
across Asia, North America, and the E.U. have not similarly pursued outright prohibitions on
Japanese fishery trade despite access to the same IAEA reports and monitoring data. This discrepancy
lays bare pretensions that China’s restrictions somehow respond to exceptional circumstances or risks.

3. The timing betrays an underlying purpose of disrupting trade flows

Finally, China’s adoption of severe restrictions in immediate synchronization with the long-planned
commencement of controlled wastewater discharge betrays the underlying reality that abruptly
disrupting trade flows rather than addressing public health concerns constituted the driving exigency.
Given years of consultations and preparations, newly alleged “insufficiencies” immediately upon the
discharge date arouse an unmistakable inference of pretextual invocation of safety issues to restrict
established trade flows.

The disproportionate trade impact divorced from discharge risks along with the circumstances and
statements awaken compelling indicia that restricting market access constituted China’s primary
purpose in derogation of WTO obligations rather than addressing plausibly legitimate food safety
concerns. Hence, China’s measure constitutes restrictions on international trade disguised as sanitary
rules, inconsistent with governing SPS disciplines.

Arguments by China: The Measure Does Not Violate Article 2.3 SPS
Obligations

I. The Measure Does Not Impose Arbitrary or Unjustifiable Discrimination

A. Conditions are Not Identical Between Impacted vs. Unimpacted States Even Post-Discharge

1. Proximity risks from contamination still differ based on geography

While the IAEA review endorsed the safety of controlled ALPS wastewater discharge practices, it
does not negate that exposure conditions still differ substantially between directly impacted countries
like Japan located in closer proximity to low-level emissions and non-impacted countries lacking
similar geography. A WTO panel previously confirmed it is not arbitrarily discriminatory under
Article 2.3 for members to differentiate based on apprehension of risks from geographic proximity to
an identified contamination source (Panel Report, India – Agricultural Products, paras. 7.281-7.283).

2. Low-level emissions still warrant differentiated precautionary measures

The IAEA’s findings that properly controlled wastewater discharges pose negligible “added” risks
must be weighed against expert opinions highlighting that significant uncertainties remain due to the
unprecedented scale and duration, with assessments noting the need to monitor data over time and re-
evaluate potential impacts as volumes escalate (Nature, 13 April 2021).

Hence where residual expert concerns recognize a possibility of long-term ecosystem changes from
sustained negligible emissions, adoption of differentiated precautionary measures does not constitute
arbitrary discrimination but rather manifests prudent stewardship.

B. Pursuing Highly Minimized Low-Level Radiation Exposure is Reasonable

While Japan contends IAEA guidance confirms no incremental human health “risks” from planned
discharges, this does not negate China’s sovereign discretion to pursue more stringent standards:

1. Societal factors shape Members appropriate level of protection

Societal risk preferences incorporate cultural outlooks and psychological stigmas from past disasters,
not just clinical epidemiology (Appellate Body Report, Australia – Salmon, para. 199). Hence the
Panel must avoid imposing scientific orientations rooted in Western value paradigms upon countries
embracing alternative understandings of environmental protection and public welfare.

2. Seeking zero radioactive contamination is not unreasonable

While engineered concentration limits may be harmless, it would be paternalistic to force Japanese
radioactive substances into China’s food chain against evident societal resistance. Aspiring to prevent
any detectible low-level contamination from Fukushima outflows manifests reasonable prudence - not
irrationality - given cultural aversion from past harms (Appellate Body Report, EC – Approval and
Marketing of Biotech Products, para. 7.3220). Hence fashioning suitable policies guided by uniquely
legitimate societal risk perspectives lies properly within China’s sovereign discretion under WTO law.

China has not arbitrarily discriminated, but adopted a rational continuum of measures proportionately
responsive to proximity risks and cultural outlooks.

II. The Measure Does Not Constitute a Disguised Restriction on Trade

A. Appropriately Precautionary Measures to Manage Enduring Uncertainties

While Japan alleges the import prohibitions manifest unwarranted trade protectionism, their motive
and design connect to addressing underappreciated risk factors:

1. Lasting uncertainties pose difficulties for projecting ecosystem impacts

Some international experts voiced uncertainty over impacts from pouring over a million tons of
treated radioactive wastewater into the ocean over 30+ years given the unprecedented duration and
questions concerning bioaccumulation effects from long-term trace exposures (Science, Apr 2021).
These opinions highlight the difficulty for even careful modelling exercises to fully exclude
possibilities of gradual, subclinical ecological changes from sustained low-level contamination. Such
lasting underscoring enduring grounds for prudence.

2. Weighing dissenting expert opinions manifests scientific integrity

The IAEA’s own assessment confirms certain experts continue voicing uncertainty despite the
IAEA’s finding of discharge safety. Weighing such potentially dissenting scientific viewpoints has
been deemed an inherent aspect of reasoned risk assessment (Appellate Body Report, EC – Approval
and Marketing of Biotech Products, para. 7.3220). Hence prudently avoiding aquatic imports amidst
partially unsettled scientific perspectives on gradual low-level emissions connects to exercising due
diligence, not trade protectionism.

B. Transparent Measure with No Indicia of a Disguised Agenda

The wider facts confirm China’s sovereign policies were not covertly directed at trade protectionism:

1. Notification procedures followed

China properly notified the WTO Committee on Sanitary and Phytosanitary Measures upon adopting
the challenged measure to guard against the risk of radioactive contamination from gradual low-level
seaborne emissions from Fukushima (SPS Notification G/SPS/N/CHN/1283, 31 Aug 2023). This
transparency dispels any inference of a disguised agenda.

2. Timing clearly responds to long-term risk factors

While the measure may secondarily impact trade conditions, its adoption directly responded to the
activation of decades-long recurrent emissions of radioactive substances with implications for
gradually heightening ocean contamination. Hence the timing clearly correlated to addressing the
reality of increasing low-level pollution flows rather than a trade-restrictive agenda.

Avoiding food imports from areas impacted by three decades of radioactive discharges closely
connects to furthering health and environmental safety. Hence the challenged measure constitutes
good faith regulation rather than a disguised trade barrier under WTO law.

Conclusion

In conclusion, the dispute between Japan and China concerning the latter's import restrictions
on Japanese fishery products highlights the intricate intersection of sanitary and phytosanitary
(SPS) measures, trade restrictions, and public health concerns within the framework of the
World Trade Organization (WTO). Japan contends that China's measures violate Article 2.3
of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS
Agreement) by imposing arbitrary discrimination and constituting a disguised restriction on
trade. Conversely, China maintains that its measures are justified, responding to genuine
health and environmental risks associated with Japan's planned discharge of treated
radioactive wastewater from the Fukushima Daiichi Nuclear Power Station.
The crux of Japan's argument lies in challenging the arbitrariness and disproportionality of
China's nationwide import ban, given the findings of the International Atomic Energy
Agency (IAEA) affirming the negligible radiological risks associated with the controlled
discharge. Japan argues that less restrictive alternatives, such as region-specific restrictions or
testing requirements, would adequately address perceived risks without unduly hindering
trade. Additionally, Japan posits that China's opposition to any radioactive discharge,
regardless of safety assurances, suggests a protectionist intent rather than a genuine concern
for public health.

On the other hand, China defends its measures by emphasizing the differentiated risks based
on geographical proximity and societal preferences. The contention that conditions are not
identical between impacted and unimpacted states, even post-discharge, forms the crux of
China's argument. China asserts its sovereign right to adopt precautionary measures tailored
to its unique risk perspectives, shaped by cultural outlooks and psychological stigmas from
past disasters. Furthermore, China contends that lasting uncertainties about the ecological
impacts of prolonged low-level emissions justify its cautious approach, aligning with the
WTO principle of allowing members to set their appropriate levels of protection.

In evaluating these arguments, it becomes apparent that the dispute extends beyond technical
considerations of food safety and radiation exposure. The nuanced intersection of scientific
assessments, cultural perspectives, and economic interests underscores the complexity of
reconciling trade regulations with diverse national priorities. While Japan highlights the need
for proportionality and non-discrimination in trade measures, China underscores the
importance of respecting sovereign discretion in setting risk standards.

In navigating this complexity, a balanced resolution should seek to accommodate legitimate

health and environmental concerns without unduly impeding international trade. A nuanced
approach that acknowledges the unique circumstances of the Fukushima discharge,
incorporates the findings of the IAEA, and respects both countries' sovereign prerogatives
would contribute to a fair and equitable resolution within the framework of WTO obligations.
Ultimately, fostering transparency, scientific integrity, and multilateral cooperation remains
essential for addressing challenges at the intersection of trade and public health in an
increasingly interconnected world.