An SPS Dispute without Science? The Fukushima Case and the Dichotomy of Science/Non-Science Obligations under the SPS Agreement

Abstract

The interface between science and law has been much debated in various fields of international law and the World Trade Organization (WTO) has been one of the main forums. Notably, WTO disputes, such as EC - Hormones and EC - Biotech, have drawn controversies and criticisms over the role of science in WTO law. Korea - Radionuclides - also known as the Fukushima case - calls upon us to reconsider an under-analysed perspective regarding science and law. While the Fukushima accident marked the first massive radionuclide release into the ocean with significant uncertainties and complexities, Korea - Radionuclides did not touch upon any 'science-based' obligations under the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). Thus, it stands out as a unique dispute in the 25 years of the SPS case law. This article unpacks Korea - Radionuclides, challenging and rethinking the assumed dichotomy between science-based and non-science-based obligations under the SPS Agreement. Our critical examination of Korea - Radionuclides suggests that science plays an important role even in the discussions of non-science-based obligations. In contrast to the conventional wisdom of the science/non-science dichotomy, we further argue that the normative integrity and raison d'être of the SPS Agreement in fact rest upon the inextricable nexus and integration between science-based and non-science-based obligations.