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A Comparative Study on the Export Control System of Strategic Items between Korea and Japan - Focused on Major Issues Related to Trade Conflicts between Two Countries -

  • Journal of International Business Transactions Law
  • Abbr : IBT
  • 2021, (34), pp.1-42
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law > Private Law > International Commercial Transactions Law
  • Received : June 30, 2021
  • Accepted : July 26, 2021
  • Published : July 31, 2021

Choi, Dong Jun 1

1연세대학교

Accredited

ABSTRACT

The conflict between South Korea and Japan over the strategic export control system, which began in July 2019, is still ongoing. The Japanese government converted the three major strategic items which are the core materials of semiconductors and displays from being subjects to comprehensive export permission to subjects to individual export permission, and excluded Korea from the White List Country Group for a reason of Korea's poor operation of strategic items. In response, the South Korean government also responded by excluding Japan from the preferred countries in terms of reciprocity. The conflict between South Korea and Japan, with the fact that these two countries play a leading role and have the Asia's longest history in export control systems, by joining four export control systems, the Wassenaar Arrangement(WA), the Nuclear Suppliers Group(NSG), the Australian Group(AG), and the Missile Technology Control Regime(MTCR), and all three non-proliferation treaties, the Treaty on the Non-Proliferation of Nuclear Weapons(NPT), the Biological Weapons Convention (BWC), and the Chemical Weapons Convention(CWC), is never desirable for the world peace and the development of the two countries, and should be resolved as soon as possible. In this respect, this study focused on major issues related to conflicts between Korea and Japan, including related laws and export control organizations, the List control, the Catch-all control, the Compliance Program, and sanctions against North Korea. The main points of the analysis are as follows. First of all, Korea enforces four laws, including the Foreign Trade Act, while Japan implements a unified legal system under the Foreign Exchange and Foreign Trade Act(FEFTA) and regulations thereunder. And while Korea distributes the management of strategic items to various ministries, including the Ministry of Trade, Industry and Energy, in consideration of the matter of an organization, Japan operates the export control system under the general management of the Ministry of Economy and Industry (METI). Both Korea and Japan accept designated items by the international export control systems, and export permissions are more subdivided in Japan's comprehensive export permissions in the List control. And, in the Catch-all control, Korea uses more strict control methods with the ‘inform control’, the ‘know control’, and the ‘suspect control’ than Japan's methods of the ‘inform control’ and the ‘know control.’ The constituents of the Compliance Program(CP) is almost identical between the two countries, including organization, regulation, education, and audit, but Japan is showing a more active and wider operation. And the sanctions against North Korea are being operated basically in coordination with the United Nations and the United States regarding North Korea's nuclear, missile development and launch. And, despite the conflict with Japan, Korea established a trade security organization in the Ministry of Trade, Industry and Energy in April 2020, and, in June of the same year, revised the Strategic Goods Import and Export Notice, eliminating the possibility of interpretation that “WMD, etc.” do not include conventional weapons, and clarified the basis for the Catch-all control for conventional weapons(Article 2, No. 15). This study examined issues under international law related to trade conflicts between the two countries through a comparative analysis of the export control system of strategic items between Korea and Japan. According to the analysis, Korea and Japan had little difference in operating the systems at the Asia's highest level in terms of managing strategic items and maintaining laws and systems to comply with relevant international laws, and were fulfilling their obligations well in domestic laws. Therefore, it is hard to deny that non-system factors are involved in the conflict between the two countries rather than the strategic items system itself. A more active political and diplomatic approach will be needed at the government level. Also, since international law is a field where there are risks of various interpretations that can be abused in the process of pursuing national interests for legal justification, it would be good to use this experience as an opportunity to thoroughly prepare for sensitive issues under international law at the national level for the future legal disputes.

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