Japan: Revising Arms Export Regulation
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Japan Japan Japan: Revising arms export regulation Recent changes to Japan’s ‘Three Principles on Arms while article 48 covers goods. Exports’ relax controls held tightly for decades. Legislation supporting the act includes (1) cabinet orders, (2) ministerial Crystal Pryor reviews the revisions while pointing out orders, and (3) notifications and an important gap in Japan’s munitions regulations guidance. The most important statutes under the act are two cabinet orders: the Export Trade Control Order apan is one of the frontrunners for principles to allow exports in cases that (‘ETCO’, or Yushutsu-rei) and the the sale of submarines to will contribute to global peace and Foreign Exchange Order (‘FEO’ or J Australia, vying with France and serve Japan’s security interests. The Gaitame-rei). The ETCO refers to Germany. Japan arguably produces the rules themselves were renamed the controlled goods (article 48 of the world’s best non-nuclear submarine, ‘Three Principles on Defense Trade Law) while FEO specifies its Soryu class. The Australian Equipment Transfers’. controlled technologies (article 25 of government initially approached Japan In July 2014, the Japanese the Trade Law). Ministerial orders about the $35 billion deal in 2014. It is government approved delivery of provide details like the specification of noteworthy because, if realised, it seeker gyros to the United States for listed items. Finally, notifications and would be Japan’s first major defence use in Patriot Advanced Capability-2 guidance/ notices (interpretations) sit export to a third party (i.e., not the (PAC-2) missile interceptors. (The below ministerial orders in Japan’s United States) in four decades.1 Prime PAC-2 will ultimately be sold to Qatar.) legal structure. Japan’s ETCO and FEO Minister Abe’s strategic vision for Japan also agreed to conduct joint (and lower) are akin to how the U.S. Japan has been a key element of the research with the UK on using Export Administration Regulations submarine deal, but enabling it are the Japanese seeker technology in air-to- (‘EAR’) and International Traffic in changes in Japan’s ‘Three Principles on Arms Regulations (‘ITAR’) respectively Arms Exports’. This article addresses Japan has recognised sit below the EAA and the AECA. the background, significance, and Japan’s Center for Information on future implications of the Three the need to engage in Security Trade Controls (‘CISTEC’) Principles revision. arms exports and notes that Japan’s multi-layer legal structure, although pervasive in the Background: ‘Three Principles’ overseas development Japanese legal system, makes any In 1967, Prime Minister Eisaku Sato projects to maintain its regulatory change in export controls established the ‘Three Principles on difficult to implement.2 Arms Exports and Their Related Policy domestic defence The revision of the Three Principles Guidelines’, which prohibited arms industry and national is a cabinet decision and, as such, does exports to Communist countries, security. not impact this legal basis. Rather, the countries subject to arms embargoes new principles serve to clarify in which under UN Security Council resolutions, cases arms exports are banned, and countries involved in or likely to be air missile technology for fighter jets. especially with regard to countries in involved in international conflicts. In early 2015, it became clear that conflict, and in what cases the Then, in 1976, Prime Minister Takeo Japan was hoping to sell its P-1 government can make approvals under Miki strengthened these regulations to maritime patrol aircraft to the UK, but the principles. Yet the legal basis is say that Japan shall not promote ‘arms’ the UK decided to go with the tried- important in the actual exports, regardless of the destination – and-true Boeing P-8 Poseidon. The implementation of these rules. creating an effective blanket ban on sale of Japanese submarines to The new principles repeat the arms exports. These rules held for the Australia, however, is still on the table. existing definition of ‘defense next four decades, with the major We should know by mid-2016 whether equipment and technology’: ‘For the exception of exports to the United Japan could beat established arms purpose of this policy, “defense States from the 1980s, most notably in exporters France and Germany to land equipment and technology” refers to collaboration on ballistic missile its first third-party defence export “arms and military technologies”; defence. since the rule revision. “arms” refers to items listed in section Since at least the end of the Cold 1, Annexed List 1 of the ETCO (Cabinet War, Japan has recognised the need to Legislation on arms exports Order No. 378 of 1949), and are to be engage in arms exports and overseas The legal basis for Japan’s arms export used by military forces and directly development projects to maintain its controls is the Foreign Exchange and employed in combat; and “military domestic defence industry and national Foreign Trade Act (Law No. 228; the technologies” refers to technologies for security. In December 2013, Japan ‘Trade Law’ or Gaitame-ho), which was the design, production or use of arms.’3 released its first National Security originally enacted on 1 December 1949, Referring to this definition, CISTEC Strategy, which promised to review the and is the equivalent of the U.S. Export notes that the distinction between what ban on arms exports based on high- Administration Act (‘EAA’) and Arms is ‘directly employed in combat’ versus level discussions in years prior. In April Export Control Act (‘AECA’). Article 25 indirectly employed is not obvious, nor 2014, the Abe cabinet revised the of the Trade Law covers technologies, is why the items must be used by 26 WorldECR www.worldecr.com Japan Japan ‘military forces’ (as opposed to, say, multilateral regimes – the Nuclear maintenance, (checking), repair, terrorists). More importantly, neither Suppliers Group, Australia Group, overhaul and refurbishing.’8 Yet only this definition nor the list of arms in Missile Technology Control Regime, Annexed List 1 employs a different Annexed List 1 considers new forms of and Wassenaar Arrangement (‘WA’) definition than WA of ‘use’: ‘any warfare and relevant IT technologies, dual-use lists. The distinction between such as in the cyber and outer space Annexed List 1 and the other lists exists With regard to the use of fields.4 This results in a gap between because Annexed List 1 has not been defence technologies, section 1, Annexed List 1 of the ETCO updated over the years, while the and the Wassenaar Arrangement others have.6 This state of affairs is the Japanese companies munitions list (‘WAML’). In particular, result of Japan restricting its arms now contemplating Japan’s list does not cover specially exports over the decades while designed IT technology or information routinely exporting dual-use defence-related exports communication-related technologies.5 technologies. are concerned that the CISTEC also notes that some items Meanwhile, with regard to the use of definition remains on the WAML are covered under defence technologies, Japanese Annexed List 14 of the ETCO rather companies now contemplating vague. than Annexed List 1. Further, among defence-related exports are concerned the items in Annexed List 1, items for that the definition remains vague. Both process other than design or police, industry, and civil use are article 25 of the Trade Law and the manufacture, including operation.…’ included. For these reasons, CISTEC FEO (Cabinet Order No. 260 of 11 This definition is both broad and argues that Japan’s list should be October 1980) describe ‘technology vague. If you follow this definition, no brought into line with the WAML. Only pertaining to the design, manufacture matter what the type of information, if then will it be appropriate for the new or use’ of listed items, in line with the it includes technical content related to Three Principles to refer to the WA definition.7 The scope of ‘use’ weapons, you may not so much as talk ‘Annexed List 1 items’ as subject to according to a Ministry of Economy, about that information to another controls. Trade and Industry (‘METI’) person without a licence. Therefore, The state of Annexed List 1 notification (ekimu tsutatsu) effective CISTEC sees the scope of ‘use’ as the contrasts with the dual-use 26 December 2011, and in line with primary reason for difficulty in making technologies covered in other lists, WA, is ‘Operation, installation a concrete, quantitative reference in which all correspond with the (including on site installation), business discussions. Nor is ‘use’ of arms limited to the six types of technology use defined in WA Arms and arms production related equipment listed as Item 1 (‘Operation, installation (including on- of the Annexed list 1 of the Export Trade Control order site installation), maintenance (checking), repair, overhaul and l Firearms and cartridges to be used therefor (including those to be used for emitting refurbishing’). For Japan’s dual-use light or smoke), and accessories thereof, as well as parts thereof. technologies, METI revised its 2 Ammunition (excluding cartridges), and equipment for its dropping or launching, and notification in 2011 to be in line with accessories thereof, as well as parts thereof. WA (through limited enumeration of 3 Explosives (excluding ammunition) and military fuel. the ‘use’ definition), except for 4 Explosive stabilisers. 5 Directed energy weapons and parts thereof. Annexed List 1. Therefore, as to 6 Kinetic energy weapons (excluding firearms) and equipment for their launching, as information related to Annexed List 1 well as parts thereof. arms, it is unclear what is subject to 7 Military vehicles, and accessories and bridges specially designed for military use controls, in both qualitative and thereof, as well as parts thereof. quantitative terms. CISTEC proposes 8 Military vessels, and hulls and accessories thereof, as well as parts thereof.