Who Violated International Law? Critical Analysis of Abe's Export Restrictions to Korea

• Author: Soojin Nam - Eric Yong Joong Lee
• Position: Assistant Professor at Department of International Economics and Law, Hankuk University of Foreign Studies. A.B. (magna cum laude) & J.D. (Harvard), M.A. (Science Po). ORCID: https://orcid.org/0000-0001-6632-1681. Nam acknowledges financial support from Hankuk University of Foreign Studies. The author may be contacted at: soojin.nam@hufs.ac.kr/...
• Pages: 353-371

Soojin Nam

∗

& Eric Yong Joong Lee

∗∗

Tensions are high between Korea and Japan as a result of Japan’s export restrictions

on three essential semiconductor materials exported to Korea and the removal of

South Korea from their White List of countries. The Abe Administration announced

that these measures were necessary to “ensure non-proliferation of weapons-related

materials.” However, it is widely suspected that these measures were adopted as a

retaliation against the Korean Supreme Court’s decision recognizing compensation

for the forced labor victims during the Japanese occupation period. The Korean

government filed a complaint concerning these measures at the WTO DSB for

resolution under international law. In this research, the authors will critically analyze

Japan’s export restrictions under international law to facilitate a peaceful resolution to

      

regulations and the Korea-Japan Claims Agreement to address the issue of who violated

international law.

Keywords

Export Restrictions, Semiconductor Materials, White List, WTO, Japan,

Korea

Who Violated International

Law? Critical Analysis of

Abe

’

s Export Restrictions

to Korea

∗ Assistant Professor at Department of International Economics and Law, Hankuk University of Foreign Studies. A.B. (magna

cum laude) & J.D. (Harvard), M.A. (Science Po). ORCID: https://orcid.org/0000-0001-6632-1681. Nam acknowledges

financial support from Hankuk University of Foreign Studies. The author may be contacted at: soojin.nam@hufs.ac.kr/

Address: HUFS Dept. of International Trade, 107, Imun-ro, Dongdaemun-gu, Seoul 02450 Korea.

** Professor of International Law at Dongguk University-Seoul, Korea; President of YIJUN Institute of International Law,

B.A. (U. Washington), M.P.A. (Seoul N. U.), LL.M. (Leiden), Dr.iur. (Erasmus). ORCID: http://orcid.org/0000-0001-

5640-490X. This work was supported by the research program at Dongguk University. The views reflected in this article,

however, are the author’s own. The author may be contacted at: grotian@hotmail.com/Address: 8, Achasan-ro 62-gil,

Gwangjin-gu #402 (Taejin Suite) Seoul 05047 Korea. All the websites cited in this article were last visited on September

19, 2019.

J. EAST ASIA & INT’L L. Vol. 12/No.2 (2019); 353-372

Publication type : Research Article

Section : Regional Focus & Controversies

DOI : http://dx.doi.org/10.14330/jeail.2019.12.2.07

1. Overview

In July 2019, the Japanese government announced that it would start restricting

the export of three essential semiconductor materials to Korea.

1

Soon after, Japan

decided to remove Korea from its White List of countries who are entitled to receive

preferential treatment in trade with Japan.

2

These measures (hereinafter Export

Restrictions) were arguably expected to cause a critical damage to the Korean

semiconductor industry and more broadly the Korean economy. Semiconductor is a

major export item of Korea as it constitutes approximately 22 percent of all Korean

exports.

3

The Abe Administration addressed that it decided to restrict the export of

semiconductor materials to Korea because it was necessary to “ensure non-proliferation

of weapons-related materials.”

4

However, it is widely suspected that these measures

are adopted as a countermeasure to the Korean Supreme Court’s decision (October

30, 2018: 2013da61381) admitting the compensation (solatium) of the forced labor

victims during the Japanese occupation period. Mr. Abe also complained that the

current Moon Jae In administration is ignoring the message of the so-called Korean

Comfort Women Joint Statement made by the Foreign Ministers of both countries on

December 28, 2015.

Severely criticizing the Moon administration’s approach, Mr. Abe maintains that

Korea has broken the agreement between States and thus is an unreliable partner

1 See Japan to effectively ban exports of semiconductor materials to South Korea, YOMIURI SHIMBUN DAILY, July 1, 2019,

available at https://the-japan-news.com/news/article/0005845877. More specifically, Japan removed the previously-

available simplified procedure for exporting these chemicals to Korea. Before, exporters of these chemicals to Korea

were eligible for the “general bulk license,” while the new measure requires individual license for each export, which is

expected to cause significant delays in supplying these chemicals to South Korea. The three chemicals now subject to

additional export screenings are fluorinated polyimide, photoresist, and hydrogen fluoride.

2 Satoshi Sugiyama, Japan officially approves scrubbing South Korea from ‘white list’ of countries, JAPAN TIMES, Aug.

2, 2019, available at https://www.japantimes.co.jp/news/2019/08/02/business/japan-officially-approves-removing-

south-korea-white-list-countries/#.XXNLKWZ7k6Y. The removal of South Korea from the White List signifies that

Japan may take additional export restrictions in addition to the measures concerning the three semiconductor materials.

Removal of South Korea from the White List may potentially affect 1,100 items. See also Hyun-woo Nam, Korea

Faces Growing Trade Uncertainties on Japan’s Further Export Curbs, KOREA TIMES, July 12, 2019, available at http://

www.koreatimes.co.kr/www/nation/2019/07/120_272262.html. The removal of Korea from the White List prevents

eligibility of bulk export license concerning all strategic items and requires individual license for non-strategic items

with certain end-uses that was previously exempt.

3 Nam-hyun Ha, Historic high in the percentage of semiconductor exports (22.5%)... Side effects of semiconductor

illusion in investment and business sentiment [   22.5%  …·,  ‘’ ],

JOONGANG ILBO DAILY, Sept. 2, 2019, available at https://news.joins.com/article/22934670.

4 Kono Taro, The Real Issue Between Japan and Korea Is Trust, BLOOMBERG, Sept. 4, 2019, available at https://www.

bloomberg.com/opinion/articles/2019-09-03/japan-south-korea-trade-spat-boils-down-to-trust.

354 Soojin Nam & Eric Y. J. Lee