Japan's Measures on Export Control to the Republic of Korea: From the Perspective of International Law

Author:Kotaro Shiojiri
Position:Ph.D. candidate at the University of Tokyo, Graduate School of Public Policy. LL.B./M.A. (Tokyo), LL.M. (Harvard). ORCID: https://orcid.org/0000-0002-4763-5279. The author would extend the deep gratitude to Professor Kazuhiro Nakatani for his valuable comments. The opinion in this paper is the view of the author and does not represent any views...
Pages:337-352
SUMMARY

Japan has argued that its recently introduced export control measures toward the Republic of Korea (ROK) are consistent with relevant international guidelines. The ROK has rejected this view and claims that Japan’s measures are inconsistent with World Trade Organization (WTO) law. If a WTO Panel is established to adjudicate this matter, the national security exception clause, specifically Article ... (see full summary)

 
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Kotaro Shiojiri
Japan has argued that its recently introduced export control measures toward the
Republic of Korea (ROK) are consistent with relevant international guidelines. The
ROK has rejected this view and claims that Japans measures are inconsistent with
World Trade Organization (WTO) law. If a WTO Panel is established to adjudicate
this matter, the national security exception clause, specifically Article XXI of the
General Agreement on Tariffs and Trade 1994 (GATT 1994), is likely to be invoked.

Panel has rendered a decision on this article. In general, the doctrine of precedents does
not strictly apply; however, it hints that the Panel may require objective arguments to
be provided despite the clauses self-judging nature. On its face, Japan appears to
       
decision.
Keywords
Control, WTO, National Security Exception Cause, Article XXI of GATT
1994, Japan, Republic of Korea
Ph.D. candidate at the University of Tokyo, Graduate School of Public Policy. LL.B./M.A. (Tokyo), LL.M. (Harvard).
ORCID: https://orcid.org/0000-0002-4763-5279. The author would extend the deep gratitude to Professor Kazuhiro
Nakatani for his valuable comments. The opinion in this paper is the view of the author and does not represent any
views of entities including the University of Tokyo. The author may be contacted at: kotaroshiojiriuniversity@gmail.
com/Address: 7-3-1 Hongo, Bunkyo-ku, Tokyo 113-8656. All the websites cited in this paper was last visited on
October 12, 2019.
Japan
s Measures on Export
Control to the Republic of
Korea: From the Perspective
of International Law
J. EAST ASIA & INTL L. Vol. 12/No.2 (2019); 337-352
Publication type : Research Article
Section : Regional Focus & Controversies
DOI : http://dx.doi.org/10.14330/jeail.2019.12.2.06
338 Kotaro Shiojiri
1. Introduction
On July 1, 2019, the Japanese Ministry of Economy, Trade and Industry (METI)
announced an update of its licensing policies and procedures regarding the export
and transfer of controlled items and their relevant technologies to the Republic of
Korea (ROK).
1
This announcement triggered international discussions not only on
export control policies, but also on the broader state of the Japan-ROK relationship.
Among other issues, whether Japans new export control measures against the ROK
amounts to a breach of its obligations under international law has been argued at
various fora.
Multilateral regimes such as the Wassenaar Arrangement have historically
provided common guidelines on export controls governing arms as well as dual-
use goods and technologies. These guidelines are mostly non-binding and it is up
to individual countries and regions to implement them through their respective
domestic systems and operations. Japan has argued that its recently introduced
export control measures toward the ROK are consistent with these international
guidelines. The ROK has rejected this view and claims that Japans measures are
inconsistent with World Trade Organization (WTO) law.
2
If a WTO Panel is established to adjudicate this matter, the national security
exception clause, specifically Article XXI of the General Agreement on Tariffs and
Trade 1994 (GATT 1994), is likely to be invoked.  
in Transit hints that the Panel may require objective arguments to be provided
despite the self-judging nature of the clause. Japans main arguments may include:
(a) legal and administrative analysis showing the inadequacy of the ROKs export
control system; (b) concrete data showing cases of illegal exports of covered strategic
goods; and (c) evidence showing that the measures are within the bounds of accepted
international practice. The ROK would likely utilize this process to promote the
effectiveness of its export control not only to Japan but also to other countries and
regions. On its face, Japan appears to have a stronger case, but the Panel would

This research provides an outline of the event and the authors analysis on the
1 METI, Update of METI’s licensing policies and procedures on exports of controlled items to the Republic of Korea
(July 1, 2019), available at https://www.meti.go.jp/english/press/2019/0701_001.html.
2 See, e.g., As Japan and South Korea clash at WTO over Trade, Rest of the World Reluctant to Get Involved, JAPAN
TIMES, July 25, 2019, available at https://www.japantimes.co.jp/news/2019/07/25/business/japan-south-korea-clash-
wto-trade-rest-world-reluctant-get-involved/#.XUqQ1-j7Ryx.

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