338 Kotaro Shiojiri
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
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 Japan’s new export control measures against the ROK
amounts to a breach of its obligations under international law has been argued at
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 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 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. Japan’s main arguments may include:
(a) legal and administrative analysis showing the inadequacy of the ROK’s 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 author’s 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-