MEMOIR OF INTERNATIONAL TRADE LAW Issues of...

MEMOIR OF INTERNATIONAL TRADE LAW: Issues of Translating WTO Safeguard Provisions into Japanese

HIRO IWAMURA*

I. INTRODUCTION II. BACKGROUND

A. GATT Article XIX, WTO, and the Agreement on Safeguards

B. General Issues of Translation III. DISCUSSION

A. Linguistic Issues of the Translated WTO Safeguard Provisions 1. Different Meanings of Words 2. Lack of Subject in a Sentence 3. Past/Present/Future 4. Long Sentence/Confusing Structure

B. Institutional Issues of the Translated WTO Safeguard Provisions

IV. POSSIBLE IMPACT OF THE MISTRANSLATION A. Measures Affecting Consumer Photographic Film and

Paper B. Impact of Wrongfully Executed Safeguard Measures

V. CONCLUSION

* The author received a J.D. from the Brooklyn Law School in 2003, and

currently clerks for Judge Susan D. Wigenton, U.S. magistrate in the district of New Jersey. The author would like to thank Professor Lawrence M. Solan and Professor Claire R. Kelly of the Brooklyn Law School for their support in completing this article.

189 ASIAN-PACIFIC LAW & POLICY JOURNAL; Vol.5 (2004)

I. INTRODUCTION �Gei·sha: One of a class of professional women in Japan trained from girlhood in conversation, dancing, and singing in order to entertain professional or social gatherings of men.�1 The American Heritage of the English Dictionary, 4th Edition �It�s a teahouse where geisha entertain. . . . The women pour drinks, and the men tell stories�except when they sing songs. Everybody ends up drunk.�2 Memoirs of a Geisha Two decades ago, only a few people would have known who a

geisha is. Many more people now have a vague sense of what she is and what she does because of Memoirs of a Geisha. However, if people have not read the book or gotten some information about geisha from other sources, how would one explain what geisha is to them? Should one describe geisha as an occupation described in a dictionary like the one stated above? Even if this description captures some of the elements of geisha, it would still not be the complete picture. Furthermore, however detailed and specific the explanation becomes, it would still be difficult for words alone to create the exact image of geisha in the listener�s mind. It is very difficult, if not impossible, to convey the underlying idea, which is contained in a word, merely using verbal descriptions.

Proper translation has always been an issue of great importance to a text�s audience, as for example, in translations of the Bible. 3 In the international legal context, mistranslation is a serious issue because it affects the political and economic status of a country. One cannot regard the lack of full understanding of certain terms as inconsequential. Miscommunications caused by mistranslation of terms may have escalated the 1991 Gulf War crisis in many ways.4

1 THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 730 (4th ed. 2000).

2 ARTHUR GOLDEN, MEMOIRS OF A GEISHA 28 (Vintage Contemporaries 1997). 3 See DR. SAMUEL C. GIPP, TH.D., THE ANSWER BOOK CH. 2 (1989), available

at http://www.chick.com/reading/books/158/158_02.asp (last visited Feb. 7, 2004) (discussing problems associated with the origin of the word �Easter�).

4 See e.g. Christopher B. Kuner, Linguistic Equality in International Law:

Miscommunication in the Gulf Crisis, 2 IND. INT�L & COMP. L. REV. 175, 190 n.4 (1991) (citing MacNeil/Lehrer Newshour, Nov. 23, 1990, Friday Transcript No. 3909 (interview with Queen Noor of Jordan)).

�It�s [Arabic] a much richer language. It�s a language that is used in a


Despite the magnitude of the problem, not much attention has been paid to the issue of how to ensure the accurate translating concerning rules of international organizations. One reason is that legal translation is regarded by translation theorists as merely one of the many subject areas of special-purpose translation, and is a branch of translation studies often snubbed for its alleged inferiority.5 This inattention has resulted in a lack of any practical guidelines or rules for the use of language specialists working in international relations.6 Currently, each nation independently translates the rules of international organizations, which can cause various legal problems.

This article analyzes the issue of mistranslation of international rules by examining the Japanese safeguard provisions, domestic law enacted to implement the original provisions of the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO). Since issues of translation are best explained in conjunction with the legal and non-legal culture of the country, relevant linguistic characteristics of the Japanese language and institutional characteristics of the Japanese political/judicial system are explored in this article as well.

Part II explains the basics of GATT, WTO and the rules of safeguard measures. In addition, general issues regarding legal and non-legal translation are briefly described. In the Discussion, Part III-A analyzes the issues of Japanese safeguard laws in linguistic perspective, where the effects of the different meaning of words and grammatical structures are analyzed using a comparison between the original language of GATT safeguard provisions and the Japanese domestic laws. Part III-B examines the institutional structure of the Japanese government to explain how it prevents effective codification and implementation of the rules of international organizations. In particular, the analysis centers on the lack of the �separation of powers� among governmental branches. Part IV analyzes the possible effects of a mistranslation of WTO provisions in Japanese trade relations, beginning with an analysis (in Part IV-A) of a dispute between the United States and Japan over the meaning of a Japanese legal term. Part IV-B then looks specifically at the impact the misuse of safeguard provisions could

much more poetic and rhetorical, flowery fashion than English, which tends to perhaps reflect very well today a much more Western, businesslike, direct, definite approach to issues. . . . . I think there are many misunderstandings and many mistakes and many problems and the exacerbation of confusion and of fear and anxiety and emotions on both sides that led to an escalation of the crisis on all levels.�

Id.

5 SUSAN �ARČEVIĆ, NEW APPROACH TO LEGAL TRANSLATION 1 (1997). 6 Edgardo Rotman, The Inherent Problems of Legal Translation: Theoretical

Aspects, 6 IND. INT�L & COMP. L. REV. 187, 191 (1995).


have in Japan by discussing recent disputes involving Japan, China, and Korea.

II. BACKGROUND

A. GATT Article XIX, WTO, and the Agreement on Safeguards

GATT was signed in Geneva on October 30, 1947, by 23

countries with a goal to achieve liberalization of trade by reducing tariffs and other barriers to trade.7 GATT was not considered a fully independent body with binding legal authority.8 Member countries could sign side agreements with other members and opt out of certain agreements created by GATT rounds.9 To supplement various shortcomings of the GATT regime, WTO was established in 1994 pursuant to the Marrakesh Agreement reached in the Uruguay Round of GATT. Under the new WTO regime, a member country must obey all the rules set out in the Marrakesh Agreement before becoming a member, and must comply with the rules set out afterward.10 Thus, all the multilateral agreements enacted by WTO are binding on all member countries with some �grace period� exceptions for developing countries.11

Furthermore, the WTO has a dispute settlement understanding (DSU), which mandates member countries to submit their complaints under the procedure and mechanism delineated in the Marrakesh Agreement.12 Under the DSU, member countries are not allowed to take any unilateral action against other member countries if they believe that

7 GENERAL AGREEMENT ON TARIFFS AND TRADE, Oct. 30, 1947, 61 Stat. A-11,

T.I.A.S. 1700, 55 U.N.T.S. 194 [hereinafter GATT], available at http://www.wto.org (last visited Feb. 29, 2004). See also HAMMOND SUDDARDS, AN ANATOMY OF THE WORLD TRADE ORGANIZATION 2 (1997).

8 Id. at 2. 9 Id. at 29. 10 Id. 11 World Trade Organization, The WTO in Brief: Developing Countries, at

http://www.wto.org/english/thewto_e/whatis_e/inbrief_e/inbr04_e.htm (last visited Feb. 29, 2004).

12 Understanding on Rules and Procedures Governing the Settlement of

Disputes, Apr. 15, 1994, Marrakesh Agreement Establishing World Trade Organization, Annex 2, LEGAL INSTRUMENTS � RESULTS OF THE URUGUAY ROUND GOVERNING THE SETTLEMENT OF DISPUTES, 33 I.L.M. 112 (1994) [hereinafter DSU Agreement] available at http://www.wto.org (last visited Feb. 29, 2004).


a violation of GATT rules exists.13 This is significantly different from the dispute settlement procedure in the pre-Uruguay Round GATT regime, under which countries could have refused to bring cases before the WTO panel or could have refused to follow its final rulings.14

Mindful that requiring complete liberalization could result in harmful trade imbalances among member countries with different levels of economic and social resources, the GATT and WTO include exceptions to the basic principles of free trade.15 Among the exceptions are safeguard measures under Article XIX of GATT, which is a protective measure designed to shield domestic industries of member countries from sudden and unexpected increases in imports whenever such imports cause, or threaten to cause, �serious injury� to domestic industry.16 To further clarify and enhance the application of the Article XIX safeguard measures, the Marrakesh Agreement includes the �Agreement on Safeguards,� adopted by the member countries in the Uruguay Round in 1994.17

The Agreement on Safeguards provides a greatly expanded explanation of the requirements and opportunities for the use of safeguard measures by WTO member countries, remedying many of the shortcomings of Article XIX.18 Under Article XIX and the Agreement on Safeguards, a country which wants to launch safeguard actions must first investigate if there is any factual basis regarding the �serious injury or threat of serious injury� to the domestic industry of the imported product or like product.19 The investigation process must be finished within one year and the member country has to make a decision whether it will commence a �general� action, which can last up to 4 years including an extension period.20 During the investigative process, if the member country deems it necessary based on the criteria set forth in the

13 SUDDARDS, supra note 7, at 25. 14 Id. 15 Id. at 7. 16 GATT art. XIX. 17Agreement on Safeguards, Apr. 15, 1994, Final Text of the GATT Uruguay

Round Agreements Including the Agreement Establishing the World Trade Organization, Annex 1A [hereinafter Agreement on Safeguards] available at http://www.wto.org (last visited Feb. 29, 2004).

18 Raj Bhala & David Gantz, WTO Case Review 2000, 18 ARIZ. J. INT�L &

COMP. L. 1, 73 (2001). 19 GATT art. XIX, para. 1(a); Agreement of Safeguards art. 4. 20 Agreement on Safeguards arts. 3 & 7.


Agreement on Safeguards, the member country can commence a �provisional safeguard measure,� which is limited to 200 days.21

These new powers conferred on WTO drastically changed the responsibilities of the countries in terms of their domestic legal practice.22 Under the pre-WTO regime, since each country could choose to abide by whatever rules it selected, the need for new domestic legislation was less significant.23 There was no need to accept new GATT rules if they significantly conflicted with domestic laws.24 However, under the WTO regime, each member country is now supposed to comply with the requirements of the multilateral agreements negotiated between the member country and the WTO as an initial requirement for joining the organization, such requirements to be enforced through the DSU.25 Thus, domestic codifications of some portions of the GATT agreements are necessary to ensure that each country's domestic laws are in accord with the WTO. Revised domestic legislation ensures that when the actors in international trade (i.e., importers, exporters and other member countries) comply with a member country�s domestic trade laws, they also comply with the international rules set out by the GATT and the WTO.26 However, this strict compliance requirement and extended international reach creates serious linguistic issues. Since the official languages of the WTO are English, Spanish, and French,27 many member countries must translate the GATT rules into their own languages, and then codify them as domestic legislation. Japan is one of those countries that required translation of some of the GATT rules into its own official language, Japanese.

Based on Article XIX and the Agreement on Safeguards, the Japanese government amended its trade laws.28 The main legal

21 Agreement on Safeguards art. 6. 22 SUDDARDS, supra note 7, at 29. 23 See generally ROBERT E. HUDEC, THE GATT LEGAL SYSTEM AND WORLD

TRADE DIPLOMACY (1975). 24 Id. 25 JEFFREY S. THOMAS & MICHAEL A. MEYER, THE NEW RULES OF GLOBAL

TRADE: A GUIDE TO THE WORLD TRADE ORGANIZATION 41-44 (1997). 26 See id. (explaining that the Trade Policy Review Mechanism (TPRM)

attempts to ensure adherence by Members of the WTO agreements in their domestic legislation).

27 SUDDARDS, supra note 7, at 51. 28 It is not clear which portion of the laws has been amended in response to

Article XIX and the Agreement on Safeguards since the legislative history of those laws is not readily available. However, all the laws were amended in either 2000 or 2001, and only the Customs Tariff Act explicitly refers to the Agreement on Safeguards.


instruments of Japanese control over imports are the Foreign Trade Control Law (Gaikoku Kawase Oyobi Gaikoku Boueki Hō)29, the Customs Tariff Act (Kanzei Teiritsu Hō)30, the Temporary Tariff Control Act (Kanzei Zantei Sochi Hō)31, the Cabinet Order for Import Trade Control (Yunyū Boueki Kanri Rei)32, and the Cabinet Order for Emergency Tariff (Kinkyū Kanzei Tōni Kansuru Seirei).33 Each source addresses a different aspect of Japan's safeguard measures, with Article 9 of the Customs Tariff Act establishing the basic procedural and substantive aspects of safeguard actions.34 The Cabinet Order for Emergency Tariff and Cabinet Order for Import Trade Control set the tariff rate and quota, respectively, when a safeguard action is taken.35 In addition, Articles 7(3) and (4) of the Temporary Tariff Control Act provide supplementary rules regarding provisional safeguard measures, substantively controlled by Article 9 of the Customs Tariff Act.36

This article focuses on Article 9 of the Customs Tariff Act, since it is the only instrument which explicitly includes translated provisions of the Agreement on Safeguards.

29 GAIKOKU KAWASE OYOBI GAIKOKU BOUEKI HŌ [FOREIGN TRADE CONTROL

LAW], Law No. 228 of 1949, available at http://www.meti.go.jp/policy/trade_policy/safeguard/index.htm (last visited Feb. 20, 2004).

30 KANZEI TEIRITSU HŌ [CUSTOMS TARIFF ACT], Law No. 54 of 1968,

available at http://www.meti.go.jp/policy/trade_policy/safeguard/index.htm (last visited Feb. 20, 2004).

31 KANZEI ZANTEI SOCHI HŌ [TEMPORARY TARIFF CONTROL ACT], Law No. 36

of 1960, available at http://www.meti.go.jp/policy/trade_policy/safeguard/index.htm (last visited Feb. 20, 2004).

32 YUNYŪ BOUEKI KANRI REI [CABINET ORDER FOR IMPORT TRADE CONTROL],

Cabinet Order No. 414 of 1949, available at http://www.meti.go.jp/policy/trade_policy/safeguard/index.htm (last visited Feb. 20, 2004).

33 KINKYŪ KANZEI TŌNI KANSURU SEIREI [CABINET ORDER FOR EMERGENCY

TARIFF], Cabinet Order No. 417 of 1994, available at http://www.meti.go.jp/policy/trade_policy/safeguard/index.htm (last visited Feb. 20, 2004).

34 See Summary of the Safeguard Action, Ministry of Agriculture, Forestry and

Fisheries of Japan, available at http://www.maff.go.jp/sogo_shokuryo/sg_kanren/sg_kanren.htm (last visited Feb. 29, 2004).

35 Id. 36 Id.


B. General Issues of Translation One of the inherent problems of translation, whether it is legal or

non-legal, is that translation often loses the subtle nuances of words, which have been created through the intertwining of social, economic and cultural aspects of the society in which the language is spoken.37 This lack of context results in various types of errors in the critical two steps of translation: the understanding of the material to be translated, and the process under which sameness in meaning is found.38 One author explained this problem using an analogy to a cook who tries to reproduce an ethnic dish with a correct recipe, but with various local foodstuffs in substitution for the authentic ethnic ingredients: �The finished product may be recognizable as a good-faith attempt at the dish in question, but the subtle flavors are invariably all wrong.�39 Thus, even if the cook carefully follows the recipe given, his or her own understanding and realization of the recipe will cause the subtle difference in flavor and other characteristics from the original dish because of differences in how he prepares or how she ultimately cooks the ingredients. In other words, the lack of understanding various contexts, which may not be stated in the recipe, will create inevitable gaps between the original ethnic dish and the dish created by the cook.40

Such shortcomings are especially aggravated in legal translation. Where everyday language makes it difficult to accurately convey the full meaning of a statement, the intricacies and complexities of the law make it virtually impossible. Legal terms often represent completely different concepts from those denoted by the regular use of the terms, even though they use the same �language.�41 Some linguists categorize legal language as a �sublanguage� of the original language,42 which is defined as �language used in a body of texts dealing with a circumscribed subject area . . . in which the authors of the documents share a common

37 Rose Kennedy, Much Ado About Noting: Problems in the Legal Translation

Industry, 14 TEMP. INT�L & COMP L.J., 423, 425-26 (2000). 38 Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165, 1194

(1993). 39 Janet E. Ainsworth, Categories and Culture: On the �Rectification of Names�

in Comparative Law, 82 CORNELL L. REV. 19, 27 (1996). 40 Lessig, supra note 38, at 1176. 41 PETER M. TIERSMA, LEGAL LANGUAGE 203 (1999). 42 John Lehrberger, Automatic Translation and the Concept of Sublanguage, in

SUBLANGUAGE: STUDIES OF LANGUAGE IN RESTRICTED SEMANTIC DOMAINS 81, 104 (Richard Kittredge & John Lehrberger eds., 1982).


vocabulary and common habits of word usage.�43 Thus, as a �sublanguage,� legal terms are given special meaning in a specific legal context, which makes it difficult to find appropriate equivalent terms in the target language.44 Without background knowledge of the original legal system, case law, and �general subject matter of the text,� it is nearly impossible to grasp the true meaning of any legal term. 45 To make matters worse, certain legal terms have different meanings in different contexts.46 For example, �libel� in tort law refers to a type of defamation, while it means bringing an action against a ship in admiralty law.47 Thus, interpreters of legal terms must know the �specific� habits of legal word usage in addition to the �common� habits of word usage.48

Second, a foreign legal system is a product of the cultural context such as location, ethnicity, economy, politics, and philosophical values.49 In order to properly translate a legal concept, translators must be aware of not only the text�s legal background, but also its non-legal background (i.e. cultural and social backgrounds).50 �In fact, some legal anthropologists claim that legal studies cannot be separated from culture, i.e., legal culture.�51 In particular, the difficulty of translation seems to increase significantly when the target and source countries have different legal systems (i.e., common law vis-à-vis civil law).52

The third reason for the enhanced problems comes from the fact that legal translation demands greater precision than translation for literature or social science articles because legal language, especially statutes, has power and consequences that directly affects people�s lives

43 Lynette Hirschman & Naomi Sager, Automatic Information Formatting of a

Medical Sublanguage, in SUBLANGUAGE: STUDIES OF LANGUAGE IN RESTRICTED SEMANTIC DOMAINS 27 (Richard Kittridge and John Lehrberger eds., 1982).

44 TIERSMA, supra note 41, at 203. 45 Id. at 212. 46 Id. at 108. 47 Id. 48 Id. 49 Rotman, supra note 6, at 189. 50 Kennedy, supra note 37, at 425. 51 �ARČEVIĆ, supra note 5, at 12 (citing Jerzy Wrόblewsky, Legal Culture and

Axiology of Law-Making, in HEINZ SCHÄFFER, GESETZGEBUNG UND RECHTSKULTUR, WIEN: MANZ 11-23 (1987)).

52 HENRY P. DEVRIES, FOREIGN LAW AND THE AMERICAN LAWYER: AN

INTRODUCTION TO THE CIVIL LAW METHOD AND LANGUAGE xvii (1969).


and conduct.53 Laws are primarily regulatory in nature, and they are generally defined as rules of conduct or instruments of social regulation.54 Given the imperative nature of legal language, imprecise translation could lead to serious results such as inducing peace or prompting war.55

The need for accurate legal translation became especially important after World War I, when many international organizations were founded with binding legal authority over the member countries. Traditionally, the rules of these organizations were written in English or French because they were preferred by the countries that urged the foundation of the organizations such as the United States, the United Kingdom, and France.56 As the organizations grew in size and importance, the addition of non-English and non-French speaking countries meant that rules would have to be translated into the official languages of those member countries. Japan is a prime example of such a country.

Although bureaucrats and experts in the field usually handle the daunting task of translating the voluminous legal documents of international organizations, the translated rules still cannot be free from the aforementioned problems inherent in the task of translation. Furthermore, since very little attention has been paid to the problems faced by the translators of international law, there are virtually no guidelines or rules to assist them.57 The task of translation is mostly left to the discretion of each country.58 With no standardized system in place, the translated rules of international organizations will continue to include serious misinterpretations of the original rules.

53 TIERSMA, supra note 41, at 71. 54 �ARČEVIĆ, supra note 5, at 10. 55 Id. 56 Dinah Shelton, Reconcilable Differences? The Interpretation of Multilingual

Treaties, 20 HASTINGS INT�L & COMP. L. REV. 611, 615 (Spring 1997). 57 Rotman, supra note 6, at 191. 58 Id.


III. DISCUSSION

A. Linguistic Issues of the Translated WTO Safeguard Provisions

1. Different Meanings of Words

The most basic, and yet most difficult, task of translation is to

choose terms for the language into which the terms are to be translated (�target language�) equivalent to the terms used in the original language (�source language�). Theoretically, when certain terms are translated from the source language to the target language, one of three relationships can be recognized between them.59 The first relationship is that the legal concept is already accepted in the target legal system and there is a functionally equivalent term in the target language (�near equivalence�).60 The second scenario is that there is a similar legal concept in the target legal system and a certain word in the target language is used as a substitute although it does not exactly cover the same legal concept embodied by the term in the source language (�partial equivalence�).61 Third, there may be no equivalent or similar legal concept in the target legal system, and a new term has to be selected or created in the target language (�non-equivalence�).62 Obviously, the third scenario, the non-equivalence case, requires consideration and deliberation during the translation process, because the translator is required to analyze in detail the original legal concept in the source language and devise a term in the target language which appropriately embodies the same legal concept.

The third scenario rarely occurs in the current Japanese legal system. In Japanese history, there have been three major occasions in which new legal concepts and languages have had to be created.63 The first stage occurred when the Chinese political and legal system was imported to Japan during the 7th to 8th centuries.64 The second stage arrived when French and German civil codes became the model for the major Japanese codes during the period between the overthrow of the

59 �ARČEVIĆ, supra note 5, at 238-239. 60 Id. 61 Id. 62 Id. 63 HIROSHI ODA, JAPANESE LAW 7 (1992). 64 Id.


Tokugawa Shogunate in 1868 and the industrialization of the Japanese economy from the mid-19th to the early 20th century.65 The third stage was when new laws based on American laws replaced and amended old Japanese law after the Second World War, during the period of the Allied Occupation.66 In addition, as the global economy made it imperative for the Japanese government and companies to interact with foreign governments and companies, Japan has imported and accepted many foreign legal concepts fairly smoothly, without any significant resistance.67 Those imported terms can now be found in authoritative English-Japanese legal dictionaries, used by practitioners and scholars as a major source of English legal interpretation.68 Thus, the issues in Japanese translation generally concern questions of near- or partial-equivalence.

Although the label �near equivalence� and �partial equivalence� may sound otherwise, these cases create no less easy problems than the non-equivalence cases. Complexities result when there is use of a preexisting legal term in the target language for a legal concept in the source language, which tends to create an erroneous prototypical image of the legal concept embodied in the term, and because the inherent gap between the different legal systems still creates a recognition gap between the legal notion described in the source language and the target language.69 Thus, even if a legal concept has a seemingly equivalent term in the target language, this is not the end of the interpretation process from a legal standpoint.70 The translated words may still mean something else in the target language depending on the context, which may differ from the legal concept in the source language.71

For instance, one of the most important terms in the safeguard provisions is �serious injury,� the standard level of damage to a domestic industry needed to trigger safeguard measures.72 Article 4, paragraph 1 of the Agreement on Safeguards contains a detailed definition of the

65 See ODA, supra note 63. 66 Id. at 8. 67 Id. at 7. 68 See e.g., HIDEO TANAKA, EIBEI HOU JITEN [AMERICAN ENGLISH LEGAL

DICTIONARY] (8th ed. 1999). This most renowned English-Japanese legal dictionary contains almost all legal concepts one can think of in the common law legal system. Id.

69 �ARČEVIĆ, supra note 5, at 238-239. 70 Id. 71 Id. 72 GATT art. XIX, para. 1; Agreement on Safeguards art. 4.


term.73 In addition, WTO panel reports indicate that the definition of �serious injury� was widely discussed among member countries prior to its adoption, and has since been interpreted in cases.74 Therefore, the meaning of the standard is basically understood among member countries and experts in international law.75

In Japanese, the term serious injury is translated as Judai na Songai (�重大な損害�). This is a combination of the literal translation of the words �serious� and �injury� into the Japanese words, �Judai� and �Songai,� connected with a particle, �na.� On its face, there seems to be no problem with this literal translation. Anybody who is fluent in both Japanese and English would probably agree that the term �Judai na Songai� is a good literal translation for the term �serious injury.�

However, in practice, it is not at all clear what this Japanese term really means in the legal context in international trade. There is no definition of the term in Article 9 of the Customs Tariff Law or any other Japanese trade laws. Furthermore, none of the Japanese courts have stated what would constitute Judai na Songai in the context of the GATT safeguard provisions.76 Looking for the source of interpretation in other statutes is of no avail since only about twenty laws use the term Judai na Songai, and none are about international trade.77 In addition, the definition of the Judai na Songai in general has not been discussed by many courts in Japan.78 The lack of a descript definition leaves many questions open, such as: is a price drop of 10 percent enough to find serious injury or does it have to be more? Does the increase have to be double in quantity to find a serious injury? This type of interpretive issue is problematic even without the existence of translation. However, with the extra interpretive layer of translation between different languages, the standard for finding serious injury under the Japanese law is not at all clear without a clear statutory definition of the term and guidance from the courts.

73 Agreement on Safeguards art. 4, para. 1. 74 See e.g., GATT Dispute Panel, Complaint Concerning Argentina Safeguard

Measures on Imports of Footwear, WT/DS121/R (1999), available at http://www.wto.org/english/tratop_e/dispu_e/dispu_subjects_index_e.htm#bkmk103 (last visited Feb. 29, 2004).

75 See e.g., THOMAS & MEYER, supra note 25, at 180-181. 76 See generally HANREI SHU [JAPANESE CASE REPORTS] at

http://www.tkclex.ne.jp/index.html (last visited Mar. 18, 2004). 77 See generally 法令データ提供システム [JAPANESE LAW DATABASE] at

http://law.e-gov.go.jp (last visited Mar. 18, 2004). 78 See generally HANREI SHU, supra note 76.


This point is further enhanced when Japanese law is compared with its U.S. counterpart, which has a detailed definition of serious injury based on the GATT definition.79 In addition, even though none of the U.S. federal or state courts have spoken about the definition of serious injury in the context of the GATT safeguard provisions, the term serious injury in general has been described and scrutinized by the U.S. courts many times in judicial opinions.80 Furthermore, U.S. federal laws alone have more than sixty sections dealing with the term serious injury.81

With this background, the term Judai na Songai under Article 9 of the Customs Tariff Law has, at best, only very vague meaning, yet it is a crucial part of the safeguard provisions under GATT rules. This vagueness fails to give proper notice to exporting countries about whether their export will meet the standard of serious injury in Japan. As the GATT 1994 requires each country to incorporate certain basic transparency and due process obligations with the publication and administration of trade regulations, the Japanese government should be aware that the deficiency of the standard may well violate due process, and should take corrective measures.82

2. Lack of Subject in a Sentence

In the Japanese language, the subject of a sentence is often omitted.83 This omission does not usually cause trouble when the subject of a sentence can be discerned from the context. However, even though a legal text is subject to stylistic variations the lack of a subject in a sentence within a legal context is cause for serious concern. In particular, a Japanese sentence carries the inherent danger of an English passive voice sentence, which often omits the agent after the rearrangement of the words. A sentence in the passive voice creates

79 See Trade Act of 1974, 19 U.S.C. § 2252 (2004): (c) Factors applied in

making determinations. (1) In making determinations under subsection (b), the Commission

shall take into account all economic factors which it considers relevant, including (but not limited to)--(A) with respect to serious injury-- (i) the significant idling of productive facilities in the domestic industry, (ii) the inability of a significant number of firms to carry out domestic production operations at a reasonable level of profit, and (iii) significant unemployment or underemployment within the domestic industry;

Id.

80 See Jones v. U.S., 526 U.S. 227, 235-38 (1999). 81 See e.g., Tariff Act of 1930, 19 U.S.C. § 1360 (1999). 82 GATT art. X. 83 HELEN BALLHATCHET & STEFAN KAISER, JAPANESE xi (2001).


some uncertainty regarding who is doing what to whom.84 Therefore, Japanese sentences with omitted subjects are comparably uncertain in meaning as to English sentences in the passive voice, which often provide unclear instructions to an unspecified actor.

There are no readily available empirical studies regarding what the effects of such characteristics in the Japanese language are on the understanding of relevant statutes by lay people. This may be because participation in the Japanese judicial system by lay people is very limited since there is no jury system in Japan.85 However, since the nature of the problem is analogous to a passive voice sentence in English, empirical studies on the English passive voice problem may shed some light on the use of Japanese sentences with omitted subjects.

Namely, Robert P. Charrow and Veda R. Charrow conducted an experiment on mock juries using standard California civil jury instructions to determine if jurors correctly understand the legal concepts embedded in the instructions.86 They focused on various linguistic elements in the jury instructions, including analysis of passive voice.87 According to their studies, when passive voice was used in subordinate clauses, the understanding of the jury significantly decreased compared to when the passive was in the main sentence.88 A similar experiment was conducted by Shari Diamond and Judith Levi using the Illinois Pattern Jury Instructions for capital punishment cases.89 Although they did not categorically separate the effect of passive voice versus active voice like Charrow�s study did, their revised jury instructions, which included more active voice than passive voice, significantly increased the correct understanding of the instructions by a mock jury.90

If this result is applicable to Japanese sentences with omitted subjects, Japanese laws implementing safeguard provisions are likely to create numerous interpretive issues since many of the statutes do not

84 Richard C. Wydick, Plain English for Lawyers, 66 CALF. L. REV. 727, 746 (1978).

85 Satoru Shinomiya, Adversarial Procedure without a Jury: Is Japan�s System

Adversarial, Inquisitorial, or Something Else?, in THE JAPANESE ADVERSARY SYSTEM IN CONTEXT: CONTROVERSIES AND COMPARISONS 114, 125-126 (Malcolm M. Feeley & Setsuo Miyazawa eds., 2002).

86 Robert P. Charrow & Veda R. Charrow, Making Legal Language

Understandable: A Psycholinguistic Study of Jury Instructions, 79 COLUM. L. REV. 1306, 1307 (1979).

87 Id. at 1325-26. 88 Id. 89 See Shari Seidman Diamond & Judith N. Levi, Improving Decisions on

Death by Revising and Testing Jury Instructions, 79, JUDICATURE 224, 227-8 (1996). 90 Id.


clearly indicate the subject. For example, in Article 9 of the Custom Tariff Act, a sentence reads as follows:

外外にににに価価の低低その他他他ささささささ事情の変変ににに特特の貨貨の輸輸の増増の事事ががり、当当貨貨の輸輸が、こさこ同同の貨貨その他他途が直直直直すに貨貨の生生に関すに奔奔の生産に重重さ損損を与え、まさま与えに恐さががに事事�ががに場直にににに、外国国国国国国に必必ががにこ認めめさにこめま、政政で特めにここめににり、貨貨ににお期期を指特し、次の措措をこにここが�でめに91

Under this section, a safeguard measure defined in the statute may be taken if there is an increase in imports due to an unforeseen drop in price, and if there is serious injury or threat of injury to the domestic industry of the product or like products. This rather long sentence does not clarify the single subject which states who decides if there is serious injury or threat, or even who would take safeguard measures under the statute. Theoretically, under this sentence structure, it becomes possible for a non-governmental entity such as an industry group to decide that there is serious injury or threat of injury to the domestic market. The statute could also allow other member countries to propose the necessity of safeguard measures. Several provisions in GATT Article XIX and the Agreement on Safeguards, on which the Japanese provision stated above was based, specifically state that the determination of serious injury must be made by �the competent authority,�92 and �the contracting party� will take the safeguard measures.93 As a practical matter, it is obvious that only the Japanese government can conduct the major investigations required under the rules, and of course, only the government can enact detailed legislation in case a safeguard measure is taken. However, because alternative readings are possible, more rigorous scrutiny and deliberation of the phrasing of the statutes is called for.

The problem of omitted subjects is amplified when combined with other ambiguous elements of the Japanese safeguard provisions. For example, Article 9 of the Agreement on Safeguards states:

Safeguard measures shall not be applied against a product originating in a developing country Member as long as its share of imports of the product concerned in the

91 KANZEI TEIRITSU HŌ [CUSTOMS TARIFF ACT], Law No. 54 of 1968, supra

note 30. 92 Agreement on Safeguards art. 4, para. 2(c). 93 GATT art. XIX, para. 1(a).


importing Member does not exceed 3 percent, provided that developing country Members with less than 3 percent import share collectively account for not more than 9 percent of total imports of the product concerned.94

This provision states an exact threshold (3 percent) up to which developing countries may be exempt from a safeguard measure initiated by a WTO member country. The footnote for this provision also provides that �[a] [WTO] Member shall immediately notify an action taken under paragraph 1 of Article 9 to the Committee on Safeguards.�95 When the provision and the footnote are taken together, it can be read as imposing a burden of proof on the member country executing the safeguard measure if it wants to target developing countries with its safeguard measures. The Japanese counterpart of this provision reads as follows:

指特しにしこすに貨貨のしのに、国国が開開の途国にがに世世世世世関の増加外を原生原こし、その輸輸入が本本の当当貨貨の総輸総入に占めに比比が小さにさの � が含まさににに場直にま、当当輸輸当入途国外生当ににににま、指特さめ除外すにさのこすに96

This provision states that if the import from a developing country occupies a �small� percentage of the total imports, the imports will be excluded from the safeguard measure. Since there is no subject used in this section, it is not clear who decides if an import from the country is small or not. In theory, this ambiguous language allows a reading that the Japanese government may declare that one percent is small, and that a developing country exporting more than that amount should not be exempt from safeguard measures. Thus, under this reading, the developing country must bear the burden of proving that the amount of their export is small, which is contrary to the provision in Article 9 of the Agreement on Safeguards. Again, practically speaking, the Japanese government would probably not adopt such a reading since it is clearly against the requirements under the Agreement on Safeguards. However, since the Agreement on Safeguards sets out a concrete figure for the threshold, changing it in the Japanese domestic law to an ambiguous standard (i.e. small), and leaving vague which country bears the burden of proof, creates ambiguous law.

94 Agreement on Safeguards art. 9, para. 1. 95Agreement on Safeguards art. 9, para. 1 n.2. 96 KANZEI TEIRITSU HŌ [CUSTOMS TARIFF ACT], Law No. 54 of 1968, supra

note 30.


3. Past/Present/Future

Compared to the four basic tenses of the English language (i.e.,

present, past, future, past-perfect), there is no past-perfect tense in Japanese and its future tense is usually the same form as the present tense.97 The difference between various tenses is usually established by using different forms for each verb.98 For example, the word �Iku� (行く) is the equivalent of �go� in English, and its tenses are specified as follows:

Japanese English Past Itta (行った) Went Present Iku （行く） Go Future Iku （行く） Will go Past-Perfect n/a Have gone

Even though it may be difficult to tell the difference between the present and future tenses without an additional phrase or adverb, those who are fluent in Japanese can usually tell the difference among the tenses from the context. With this in mind, there is a clear mistranslation in Article 9 of the Customs Tariff Law, which may be in violation of a requirement under Article XIX of GATT. Article XIX, paragraph 2 of GATT requires a member country to give notice to contracting parties and to take other required steps �[b]efore any contracting party shall take action pursuant to the provisions of paragraph 1 of this Article.�99 The Japanese counterpart of this section, Article 9-3 of the Customs Tariff Law states:

特定の貨物につき第一項第二号の規定による措置そ

の他の一般協定第十九条1の規定およびセーフガー

ド協定による措置ととる場合またはとった場合は…100

The underlined portion of the provision states that �if the action is or will be taken (Toru), or has been taken (Totta).� Since the present and future tenses are the same form, it is difficult to tell whether the first word Toru points to the present or future cases. Nevertheless, this point is not so

97 KAREN SANDNESS, JAPANESE: THE EASY WAY 91 (1997). 98 Ballhatchet & Kaiser, supra note 83, at 47. 99 GATT art. XIX, para. 2. 100 KANZEI TEIRITSU HŌ [CUSTOMS TARIFF ACT], Law No. 54 of 1968, supra

note 30, para. 2-3.


significant since the legal consequences will not be affected by the difference between the present and future tenses in this circumstance. Either way, the action has not yet been taken and will occur some time in the future. However, the word Totta (took or has taken) refers to the past, and therefore this verb tense impliedly allows the government to give notice to other countries after the action has already been taken. Since there is no exception to the original GATT rule prescribed in Article XIX, paragraph 2 that the governments may give notice after taking the measure, the use of the past tense of the Japanese language in this sentence does not conform to the requirement under GATT. It is unclear whether this use of the past tense was a genuine mistake or a strategic choice by the drafters, the Ministry of Foreign Affairs. In any event, it is essential to realize that a simple choice of verb tense may cause a violation of international law, and the Ministry should correct this section immediately.

4. Long Sentence/Confusing Structure

Laws written in the source language may sometimes include very long and complex sentences. When such laws are translated into Japanese, the translated provisions may become much more complicated than the original English version. Such complexity occurs partly because the translators often try to translate all the elements in the original law literally, including the minor clauses and phrases.101 Another reason for confusing sentences in the target law may be simply that the translator lacked expertise to fully understand the meaning of the source law due to its complexity.102 Thus, some scholars have suggested that translators focus on the core meanings of the original law during the course of translation and translate only the provisions allowing more flexibility for interpreters of the law.103 However, such a process is not as simple as it may sound since the translator still must include important elements of the original law. For example, the Agreement on Safeguards Article 4, paragraph 2(a) states:

In the investigation to determine whether increased imports have caused or are threatening to cause serious injury to a domestic industry under the terms of this Agreement, the competent authorities shall evaluate all

101 See �ARČEVIĆ, supra note 5, at 24-25 (discussing the history of guidelines

for strict translations dating back to the Code of Justinian). 102 Matt Hammond, A New Wind of Quality from Europe: Implications of the

Court Case Cited by Holtz-Mänttäri for the U.S. Translation Industry, in TRANSLATION AND THE LAW 233-235 (Marshall Morris ed. 1995).

103 �ARČEVIĆ, supra note 5, at 18-19.


relevant factors of an objective and quantifiable nature having a bearing on the situation of that industry, in particular, the rate and amount of the increase in imports of the product concerned in absolute and relative terms, the share of the domestic market taken by increased imports, changes in the level of sales, production, productivity, capacity utilization, profits and losses, and employment.104

The plain meaning of this provision is that a member country should consider objective and quantifiable factors when it conducts investigations. The phrase �in particular� suggests that a member country is advised to pay special attention to the factors following the phrase. However, the Japanese counter part of this section reads:

政政ま、特特貨貨の輸輸増増の事事事おこさににに本本の生産に与えに重重さ損損損の事事ににににの十十さ証証ががに場直にににに、必必ががにこ認めにこめま、こさめの事事の有有ににめ調調を行しさのこすに105

This section, as written in Japanese, states that the government will start investigating whether increased imports have caused, or are threatening to cause, serious injury to domestic industries, if there is enough evidence regarding such injury. This provision does not require particular factors to be taken into consideration for determining the investigation of the serious injury or the threat of serious injury. It is not clear why the Japanese government completely omitted the criteria specified under the Agreement on Safeguards in the translation. This simplification of the provision will cause problems for those government officials who conduct the investigations, for they may only include subjectively relevant factors without statutory guidance on the matter.

B. Institutional Issues of the Translated WTO Safeguard Provisions

Since language derives its meaning from the social context, the

analysis of translation must focus both on the language itself and the cultural background of the country in which the language is spoken.106 Thus, aside from the linguistic issues particular to Japanese discussed in

104 Agreement on Safeguards art. 4, para. 2(a). 105 KANZEI TEIRITSU HŌ [CUSTOMS TARIFF ACT], Law No. 54 of 1968, supra

note 30. 106 �ARČEVIĆ, supra note 5, at 12.


the previous section, the Japanese legal and political system must be analyzed in order to comprehend the issues regarding the translation of international laws written in English into Japanese. Several factors and characteristics of the Japanese system make it difficult for the translated legal texts of an international organization to have the authority anticipated by the original drafters.

First, the law-making process in Japan is problematic in this situation. The laws are usually prepared and drafted by bureaucrats within the administrative department with jurisdiction over its subject matter, who are neither elected by nor accountable to voters.107 With regard to the rules of an international organization, bureaucrats from the Ministry of Foreign Affairs (and bureaucrats from relevant ministries when necessary) form a translation committee to translate the legal texts of the international organization.108 When the issues in the legal texts are very technical, specialists in the area such as university professors or representatives from various interest groups are invited to join the translation committee.109 Regardless of such civilian participation, however, the laws drafted by bureaucrats are adopted without much scrutiny or modification.110 Thus, objective deliberation is lacking in this process to neutrally represent the interests of other countries or the views of the international organizations, which is critical to capture the various aspects of the rules of the international organizations without any bias. Under these conditions, it is not difficult to imagine that Japanese bureaucrats may try to interpret the rules of the international organizations in a way that suits the immediate needs of major interest groups and political parties, which may not necessarily align with the best interests of the Japanese citizens, or with the original intentions of the international organizations.111

Second, such a lack of deliberation continues even after the bureaucrats submit the drafts of translated laws to the Diet for ratification. Except for two very brief occasions since the end of the

107 JOHN OWEN HALEY, AUTHORITY WITHOUT POWER: LAW AND THE JAPANESE

PARADOX 140 (1991) 108 Based on the author�s interview with a representative of the Japanese

Ministry of Foreign Affairs (Dec. 10, 2002) (by request remaining anonymous). 109 Id. 110 ODA, supra note 63, at 47. 111 Frank Diedrich, Maintaining Uniformity in International Uniform Law via

Autonomous Interpretation: Software Contracts and the CISG, 8 PACE INT�L L. REV. 303, 314-315 (1996) (stating that, in the context of CISG, every lawyer unavoidably applies and interprets international uniform law in a nationalistic approach favoring the country unless the laws of the international language are very clear and requires strict compliance).


World War II, the Japanese Diet has been dominated by a single party, the Liberal Democratic Party (hereinafter �LDP�), and its alliances.112 Since the Prime Minister, who selects the Cabinet members, is chosen by the vote of members of the Diet, it is fair to state that the LDP basically has been choosing the Prime Minister and the Cabinet members.113 �No politician can become [P]rime [M]inister unless [s/]he is a leader of one of the major factions in the party and forms alliances with other faction leaders.�114 Thus, the opinions of the Diet and the Cabinet tend to become those of the LDP.115

Furthermore, before the submission to the Diet for discussion, bills are usually sent to the leaders of the LDP and other major opposition parties, and a compromise is reached behind closed doors.116 Therefore, the overall structure and content of a law is determined well before the discussions in the Diet and it is very difficult for the non-leaders of political parties, let alone those in a minority or independent party, to change the law during the Diet debate.117 In addition, bureaucrats are very close to politicians of the LDP as a significant number of former bureaucrats occupy important leadership positions within the LDP.118 Such close relationships between the LDP and bureaucrats considerably compromise the objectivity of the legislation process.119 In this setting, if a law is drafted with a certain bureaucrat�s short-sighted view, the Diet or the Cabinet will not scrutinize the law especially when the nature of the law is administrative or not close to the main interests of the politicians (and the interest groups behind them).120 Thus, it is unlikely that the politicians spend a substantial amount of time needed to scrutinize the Japanese laws embodying the GATT rules.

112 MALCOM M. FEELEY, The Bench, The Bar and the State: Judicial

Independence in Japan and the United States, in THE JAPANESE ADVERSARY SYSTEM IN CONTEXT 67, 84 (Malcolm M. Feeley & Setuo Miyazaki eds. 2002).

113 Ellis S. Krauss, Politics and the Policymaking Process, in DEMOCRACY IN

JAPAN 45-50 (T. Ishida & E. S. Krauss, eds. 1989) reprinted in MERYLL DEAN, JAPANESE LEGAL SYSTEM 238 (2002).

114 Id. 115 Id. 116 ODA, supra note 63, at 48. 117 Id. 118 HALEY, supra note 107, at 140. 119 Id. 120 HIROSHI ABE, ET. AL., THE GOVERNMENT AND POLITICS OF JAPAN 17-23

(James W. White trans., 1994).


Third, there is almost no judicial independence in Japan.121 One scholar explained the lack of judicial independence in Japan by describing the system as follows:

[A] highly bureaucratized judicial system which closely supervises the actions of sitting judges has links with retired judges, who have begun new careers in politics including election to the Diet as representatives of the dominant Liberal Democratic Party. This tight-knit relationship assures that sitting judges are not likely to do anything that embarrasses the government.122

The closeness of the Judiciary to the other political branches is enhanced by the fact that the LDP has been dominant nearly throughout the entire history of Japanese politics after WWII.123 Political systems with competitive parties are more likely to produce independent judiciaries than systems dominated by a single party because a majority party in a competitive setting tries to avoid giving judges too much power in case the party loses the majority.124 On the other hand, a single potent party that is confident enough not to lose the power in the future, such as the LDP, tends to exercise strong control over the judiciary so that they can keep tight control over judicial decision-making.125 While some scholars present other reasons for the lack of judicial independence in Japan, all agree that the Japanese judiciary is not independent enough from the other branches of the government.126

The LDP also exercises control over the judiciary through assignments of posts and promotions to the judges.127 These are determined by administrative offices under the control of Supreme Court

121 FEELEY, supra note 112, at 83. 122 Id. at 82. 123 J. Mark Ramseyer, The Puzzling (In)Dependence of Courts: A Comparative

Approach, 23 J. LEGAL STUD. 721, 723 (1994). 124 Id. at 741-42. 125 Id. 126 FEELEY, supra note 112, at 83. Feeley dismisses the Ramseyer�s single

party reasoning as too simplistic, and attributes the lack of judicial independence to a �weak state� governmental structure in Japan. For other discussion why judicial independence is not achieved in other democratic countries, see William M. Landes and Richard A. Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J. LAW & CON. 875 (1975).

127 Ramseyer, supra note 123, at 725.


judges who are loyal to the LDP since they were selected by the party.128 Furthermore, the Supreme Court Secretariat also has the power to decide promotions of the judges and to refuse renewal of a ten-year term without giving reasons.129 Within their ten-year terms, the judges are transferred among large, medium, and small courts every two or three years.130 In this transferring process, judges who �go along� with the general intent of the government can expect more attractive postings (i.e., closer to their home towns or in the Tokyo area as well as regular promotions.131 In contrast, judges �who rule against the government or make controversial rulings are likely to find themselves transferred to remote outposts or assigned onerous duties.�132 Various studies conducted by Professor Ramseyer show that judges deciding against the government in certain high profile cases tend to get onerous assignments or fewer promotions.133 The Supreme Court also has the power to refuse to reappoint judges without any reason.134 Historically, it has refused to reappoint judges who did not accept a transfer or who had a specific political view.135

Moreover, because the bureaucrats and the judiciary are closely tied, it is difficult for the judges to overturn the laws created by their �colleagues� in the ministries. This close relationship comes from the frequent exchanges of personnel between the courts, the Ministry of Justice and the Public Prosecutors Office.136 Upon transfer, the judges usually work in the litigation department of the ministries as representatives for the government in administrative cases and

128 Ramseyer, supra note 123, at 725. 129 Id. See also FEELEY, supra note 112, at 83. 130 ODA, supra note 63, at 96. 131 FEELEY, supra note 112, at 82-83. 132 Id. 133 A study shows that the LDP does not try to control low profile cases, which

do not have so much political impact, such as tax litigations, but does exert control over the judges on high profile cases such as constitutional issues. See J. Mark Ramseyer & Eric B. Rasmusen, Why the Japanese Taxpayer Always Loses, 72 S. CAL. L. REV. 571 (1999).

134 J.O. Haley, Judicial Independence in Japan Revisited, 25 LAW IN JAPAN 3-

18 (1995) reprinted in DEAN, supra note 113, at 319 (2002). 135 HALEY, supra note 107, at 330. See also J. RAMSEYER & F. ROSENBLUTH,

Japan's Political Marketplace, 151-59, 162-68 (1993) reprinted in DEAN, supra note 113, at 329 (2002).

136 ODA, supra note 63, at 96.


government tort cases.137 �Those who return from the Ministry eventually hold key positions within the court, such as the president of the district courts and appellate courts, as well as the director of the Supreme Court Secretariat.�138 Although this practice of exchanging personnel was once abolished as incompatible with the constitutional requirements of the impartiality of the judiciary, the practice was revitalized when the Ministry of Justice claimed that the ministry needed experienced public prosecutors with sufficient legal knowledge.139 Thus, the partiality of the judiciary toward the bureaucrats and the other two branches of the government still thrives, and rarely does appropriate judicial scrutiny of legal texts happen even today.

Other evidence indicates a lack of judicial independence. In Japan, there were only 1,947 cases against the government in 2000.140 Of the roughly 1500 cases heard, plaintiffs won against the government in only 338 cases.141 What is more astonishing is that even when the parties won against the government, some courts actually withdrew their decisions upon pressure from other governmental branches.142 From the Second World War to 1992, the Supreme Court has declared a law unconstitutional in only four cases. Furthermore:

A judgment of the Supreme Court which finds a certain provision of a law to be unconstitutional does not automatically make that provision void. The provision is regarded as null and void only in relation to the specific case before the Court. When the Supreme Court finds a provision of law to be unconstitutional, it publishes the judgment in an official gazette (kanpō) and sends the original to the Cabinet and the Diet for consideration. The Cabinet and the Diet are then expected to take appropriate action.143

137 ODA, supra note 63, at 97. 138 Id. 139 Id. 140 Statistical Material on Legislative Suits, Supreme Court Secretariats, 3rd

Meeting on Legislative Suit Committee (Apr. 8, 2002), available at http://www.kantei.go.jp/jp/singi/sihou/kentoukai/gyouseisosyou/dai3/5siryo.pdf (last visited Mar. 18, 2004).

141 Id. 142 Hoshino v. Tokyo Koan Iinkai, 483 Hanrei Jōhō 3 (Tokyo D.C. 1967)

available at http://www.tkclex.ne.jp/index.html (last visited Mar. 18, 2004). 143 ODA, supra note 63, at 43.


However, this does not mean that the Cabinet or the Diet necessarily takes the actions mandated by the Court.144 No corrective actions were taken whatsoever by either the Cabinet or the Diet for two of the four cases mentioned above.145

In the United States, the framers of the Constitution deliberately created a political model that would ensure the separation of powers and allow for deliberation by the parties in both Congress and Executive Branch before the enactment of a law.146 Such safeguards include the veto power and the supermajority vote needed to override a veto.147 With this system in mind, the framers of the Japanese Constitution explicitly included clauses to divide state power among three independent branches of authority.148 However, regardless of these clauses in the Constitution, the close connection among the Cabinet, the Diet and the Judiciary has in effect abolished the separation of powers in the Japanese political system.

Under these circumstances, when bureaucrats create domestic laws based on the rules of WTO, none of the branches of the government would be competent to either deliberate or scrutinize whether those laws comply with either the original international rules or the domestic laws. As explained in the previous sections of this paper, the Japanese safeguard provisions contain some shortcomings and violations of the original WTO Article XIX. Under the current Japanese political structure, once such mistakes are made at the bureaucratic level, it is highly unlikely that they will be detected, let alone corrected, by other branches of the government.

144 Id. at 43-44. 145 Id. (One of the two cases was about the difference of voting power in

different political districts, and the government amended the law. However, the amendment was not enough to rectify the difference that had been declared unconstitutional.)

146 Bernard W. Bell, Dead Again: The Nondelegation Doctrine, The

Rules/Standards Dilemma and the Line Item Veto, 44 VILL. L. REV. 189, 222 n.158 (1999).

147 Id. 148 JAPAN CONST. arts. 41, 65 & 76. Article 41 confers legislative power to the

Diet; article 65 confers executive power to the Cabinet; and article 76 confers judiciary power, stating: �All judges are independent in the exercise of their conscience and bound only by the constitution and the laws.� Id.


IV. POSSIBLE IMPACT OF THE MISTRANSLATION

The legitimacy of the Japanese safeguard provisions has not yet

been determined since the issue has not been brought before WTO panels for scrutiny. However, since Japan has launched provisional safeguard measures against the import of shiitake mushrooms, tatami grass and leeks from China in 2001, it may not be long before full safeguard measure will be taken against some other countries, necessitating a full inquiry by the WTO on the language of the Japanese statutes.149 In this section, possible impacts of such review are analyzed using two examples. The first is the WTO panel dispute between Japan and the United States regarding consumer photographic film and paper. Although this dispute did not include any issues based on the safeguard provisions, both parties and the WTO panel extensively discussed the meaning of certain terms in Japanese laws that the U.S. alleged violated GATT. The second example is the actual impact caused when Korea initiated safeguard measures against China for the import of garlic.

A. Measures Affecting Consumer Photographic Film and Paper

In 1996, the United States requested a WTO panel consultation

regarding certain laws, regulations, and requirements of Japan, which affected the distribution and sale of imported consumer photographic film and paper.150 In particular, the United States argued that certain measures violated the obligations of Japan under GATT, including Articles III, X, and XXIII.151 Among those three articles, the panel paid special attention to the reading of Article XXIII, paragraph 1 of GATT 1994, which states:

If any contracting party should consider that any benefit accruing to it directly or indirectly under this Agreement is being nullified or impaired or that the attainment of any objective of the Agreement is being impeded as the result of

149 For general information about Japan's attempted safeguard action against

China, see The Ministries of Agriculture, Forestry and Fisheries of Japan, Information about Safeguard Measures, at http://www.maff.go.jp/sogo_shokuryo/sg_kanren/sg_kanren.htm (last visited Feb. 4, 2004) .

150 WTO Report of the Panel, Japan�Measures Affecting Consumer

Photographic Film and Paper, WTO Doc. No. WT/DS44/R para. 1.1 (Mar. 31, 1998), 1998 WL 268878 [hereinafter �WTO Report of the Panel�].

151 Id.


(a) the failure of another contracting party to carry out its obligations under this Agreement, or

(b) the application by another contracting party of any measure, whether or not it conflicts with the provisions of this Agreement, or

(c) the existence of any other situation, the contracting party may, with a view to the satisfactory adjustment of the matter, make written representations or proposals to the other contracting party or parties which it considers to be concerned. Any contracting party thus approached shall give sympathetic consideration to the representations or proposals made to it.

The United States argued that certain measures taken by Japan nullified or impaired benefits accruing to the United States directly or indirectly under GATT, within the meaning of Article XXIII, paragraph 1(a) and (b).

The first issue argued in this case was what constituted a �measure� within the meaning of Article XXIII. The United States alleged that certain �guidelines� should be considered as measures within the meaning of Article XXIII.152 Those guidelines were not laws officially enacted either by the Cabinet or by the Diet, but suggestions announced by governmental entities for certain industry groups to follow.153 Japan argued that those guidelines were not measures in the sense of Article XXIII, paragraph 1(b), for a measure must provide a benefit or impose a legally binding obligation or its substantive equivalent. Japan argued that this view should circumscribe what constitutes a measure within the meaning of Article XXIII, paragraph 1(b).154 However, the panel rejected this narrow view of the term measure, stating: �a government policy or action need not necessarily have a substantially binding or compulsory nature for it to entail a likelihood of compliance by private actors in a way so as to nullify or impair legitimately expected benefits within the purview of Article XXIII, paragraph 1(b).�155 The panel stated that a broad definition of the term measure for purposes of Article XXIII, paragraph 1(b) should be adopted, which considers whether

152 See WTO Report of the Panel, supra note 150, para. 10.22. 153 GATT art. XXIII, para. 1(b). 154 WTO Report of the Panel, supra note 150, para. 6.14 � 6.22. 155 Id. para. 10.49.


or not a non-binding government action has an effect similar to a binding one.156

An interesting point about the meaning of measure here is the difference in translation adopted by Japan and the United States. Among the specific measures discussed in this case, certain measures included the Japanese word �taisaku� in the title. Both Japan and the United States spent considerable energy in their pleadings arguing over the meaning of taisaku in the context of international trade. The United States argued that Taisaku should be translated as �countermeasure,� since �tai� means �against� and �saku� means �measure.�157 Therefore, the U.S. argued that taisaku implied taking certain measures against something, or in response to something, negative.158 In the context of international trade, the U.S. alleged taisaku against the importation of a U.S. product, suggesting that the import of certain U.S. products was not appreciated, and that the intention of the Japanese government to adopt the measure was to restrict the flow of those products.159 On the other hand, Japan argued that taisaku had both positive and negative connotations depending on the context, and that the U.S. reading was not accurate.160 Japan further argued that, in the context of the measures in dispute, nothing negative against trade should be inferred from the word taisaku, therefore the English word measure, and not countermeasure, was the appropriate translation of the term.161

Instead of choosing either measure or countermeasure, the WTO panel decided to use both terms depending on which party raised the issue.162 The panel took this approach since the two experts hired by the panel opined that the word taisaku might mean either measure or countermeasure depending on the context.163 The panel thus chose to focus more on the substance of taisaku rather than giving it a restrictive label. 164 This incident exemplifies that a mistranslation of certain words

156 WTO Report of the Panel, supra note 150, para. 10.49. 157 See Annex on Translation Problems to the WTO Report of the Panel, Japan

- Measures Affecting Consumer Photographic Film and Paper, WTO Doc. No. WT/DS44/R, Issue 1 (Mar. 31, 1998), 1998 WL 268878 [hereinafter Annex on Translation].

158 Id. 159 See Annex on Translation, supra note 157. 160 Id. 161 Id. 162 WTO Report of the Panel, supra note 150, at para. 10.1 n.1177. 163 Id. 164 Id.


into Japanese may be taken as implying certain meanings that are not intended by the drafter of the rules in the original language. In an extreme case, there is a possibility that a word translated into Japanese from English may be translated back again into a totally different English word, which violates a law which the original English word did not.

Another issue described in the panel report was the reading of �benefit� under Article XXIII.165 The panel concluded that a benefit included what �a Member reasonably expects to obtain from a tariff negotiation.�166 The panel further stated that in order for expectations of a benefit to be legitimate, the challenged measures must not have been reasonably anticipated at the time the tariff concession was negotiated. If the measures were in fact anticipated, a Member could not have had a legitimate expectation of improved market access to the extent of the impairment caused by these measures. The panel stated two instances that such expectation could be legitimized. First, if the measure is adopted after the negotiation, the country should not be held to have anticipated these measures, and it is then for the country which initiated the measure to rebut that presumption.167 Second, if the measure is adopted prior to the negotiation, the country attacking the measure should generally have the presumption that it did not know, or could not have known of, the significance of the measure.168 However, the panel also stated that:

Knowledge of a measure�s existence is not equivalent to understanding the impact of the measure on a specific product market. For example, a vague measure could be given substance through enforcement policies that are initially unexpected or later changed significantly.169

Thus, when this notion is applied to the case of the safeguard measures under GATT XIX and the Agreement on Safeguards, if a domestic safeguard provision is too vague or too far away from the original meaning of the international rules for other member countries to understand the impact of the measure, mistranslation causing such vagueness could be regarded as a violation of GATT rules.

165 GATT art. XXIII, para 1. 166 WTO Report of the Panel, supra note 150, para. 10.72. 167 WTO Report of the Panel, supra note 150, para. 10.79. 168 Id. para. 10.80. 169 Id.


Although the panel found that the United States had not demonstrated that the measures taken by Japan violated GATT, the issue of different interpretations of important words still remains problematic.170 Inaccurate or misleading translations of WTO rules may make the translated laws subject to criticism and make them vulnerable to attacks by other countries not for a substantial violation of GATT rules, but for vague translations.

B. Impact of Wrongfully Executed Safeguard Measures

If Japan begins a safeguard measure based on an incorrect interpretation of WTO rules based on its domestic law, the consequences could be significant. Under the Agreement on Safeguards, an exporting country, which is subject to a safeguard measure initiated by an importing country, can take retaliatory measures against the importing country.171 Although such retaliatory measures have to be �substantially equivalent� to the safeguard measure taken, the Agreement on Safeguards does not limit the retaliatory action to the same type of product.172 Therefore, in most cases, a retaliating country will choose strategically more important products to impose duties on, compared to the products protected by the safeguard measure of the importing country, which are often those of declining industries in the country (i.e., internationally non-competitive products).

For example, in 1999, Korea initiated a safeguard action on the import of garlic, 99 percent of which was imported from China.173 To counteract this, China, which was not a WTO member at the time, initiated retaliatory actions by completely banning the importation of Korean cellular phone products and polyethylene products.174 Although the two countries eventually reached an agreement to drop both the safeguard and retaliatory actions, China�s retaliatory action is estimated to have resulted in damage to the Korean economy worth one hundred million U.S. dollars.175

170 Id. During the proceedings, issues of translation from Japanese to English

arose frequently. The understanding of certain terms in Japanese laws was different between the U.S. and Japan, and it required the panel to make a note of the disparity, totaling 25 disputed items. Id.

171 Agreement on Safeguards art. 8, para. 2. 172 Id. 173 JETRO, Trade White Paper 2001 (2001), available at

http://www.jetro.go.jp/ec/j/sg/pdf/sg02.pdf (last visited Feb. 4, 2004). 174 Id. 175 Id.


Another example of the negative effect of safeguard actions is the retaliatory action taken by China against Japan�s provisional safeguard measures in 2001. When Japan initiated provisional safeguard measures in 2001, in preparation for full safeguard measures, against the import of shiitake mushrooms, tatami grass, and leeks, China imposed duties on Japanese motor vehicles, air conditioners and mobile phones.176 The damage from the imposition of the duties was estimated at almost 57.6 billion yen (approximately 500 million U.S. dollars) for only the second fiscal year of 2001.177 Japan dropped the safeguard measures at the end of 2001 to avoid further damage.178 However, if it had not, the estimated damage for fiscal year 2002 could have been 420 billion yen (approximately 3.5 billion U.S. dollars) for the automobile industry alone.179 As might be expected, there is no requirement under Article XIX or the Agreement on Safeguards that the exporting country must compensate for the damages the importing country suffered from a retaliatory action.

In addition, industries incur high transaction costs lobbying for launching safeguard actions. Typically, safeguard actions are taken by the government in the interest of industry groups that have lost competitive advantages against other countries long before the launching of safeguard actions.180 Since industries request safeguard actions through their government,181 strong �industry groups,� which may not be a strong �industry� worldwide, may try to control government actions.182 In totality, such government actions may not necessarily benefit the overall welfare of the country itself since other strong industries may suffer negative impacts from such retaliatory trade sanctions as discussed above. As a recent example, U.S. steel industries lobbied to invoke safeguard measures against imported steel, even though commentators

176 See Summary of the Safeguard Action, supra note 34. 177 METI: Automakers To Lose Y57B On Lost China Exports, available at

http://www.ebc-jp.com/newsviews/general%20news/archive/auto/auto-oct2001.htm (last visited Feb. 4, 2004) [hereinafter METI].

178 See Summary of the Safeguard Action, supra note 34. 179 METI, supra note 177. 180 Rust Never Sleeps - Steel and America�s Trade Sanctions, THE ECONOMIST

(Mar. 9, 2002), 2002 WL 7245455 [hereinafter THE ECONOMIST]. 181Understanding the WTO: The Agreements. Anti-dumping, subsidies,

safeguards: contingencies, etc, available at http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm8_e.htm (last visited Mar. 25, 2004).

182 THE ECONOMIST, supra note 180.


agree that such an action would not benefit the U.S. economy in general.183

Taking safeguard measures without careful deliberation may also be criticized from an economic point of view. As Samuelson describes in his classic book on economics, �[e]ven if by chance two countries can both produce the same commodities, they generally find that it pays for each to specialize production especially on some goods � and trade its exports for imports of other goods.�184 Even if there are some strategic reasons to protect certain declining industries, government intervention on international trade by imposing tariff is often criticized because �prohibitive tariffs will kill off all the advantage[s] of specialization and trade.�185 Obviously, Japan has lost its competitive advantage regarding certain agricultural products over China and other countries, where cost for manual labor is much cheaper than in Japan.

All of these risks do not seem to have a direct relationship with the mistranslation of international rules. In fact, it is very difficult to prove any direct causation between mistranslation and the risks discussed above because many other elements affect the trade strategy of Japan and other countries. However, since Japan is so heavily dependent on exporting goods to other countries, initiation of safeguard measures without adequate deliberation will cost the country in total while profiting only small fraction of the economy. To avoid premature initiation of safeguard measures, the government should analyze and follow the language and the spirit of GATT.

V. CONCLUSION

Translating the rules of international organizations tends to be more problematic in Japan because of its linguistic characteristics and legal/political structures. Translation from English to Japanese is susceptible to errors, and such errors are highly unlikely to be scrutinized under the current Japanese political and judicial regime. Furthermore, mistranslations combined with the dysfunctional checks and balances system among government branches may result in substantial penalties for Japan. Even though some of the penalties are only indirectly related to mistranslation, the cost of taking the risk is extremely high, especially when the Japanese government has the power to avoid such risks with diligent translation efforts that ensure strict compliance with international rules. The government should do everything it can to avoid

183 THE ECONOMIST, supra note 180. 184 PAUL A. SAMUELSON, ECONOMICS 627 (11th Ed. 1980). 185 Id. at 634.


imposing high costs on its citizens in the private sector for preventable mistakes and oversights.

One may argue that all the issues raised so far are problems that are more theoretical than practical, since there are a number of requirements the Japanese government must meet before launching safeguard measures under GATT and WTO, such as a good faith interpretation of international treaties under Article 33 of the Vienna Convention.186 The Japanese Constitution also requires that international treaties, as well as the established laws of nations, should be faithfully observed.187 However, as Judge Easterbrook once stated, �[s]tatutes are law, not evidence of law.�188 This universal statement seems to apply to Japanese law as well. By having ambiguous laws, the government fails to give proper notice of its domestic safeguard measures to both other member countries of the WTO and individual participants in international trade. Legal certainty, predictability, and conflict avoidance are ensured by clear and precise legal texts, and the government must do everything to make the interested parties aware of their rights and obligations.189 In the international arena, other countries will not be so tolerant as to make time to consider or understand the unwritten Japanese context in their reading of Japanese law.

What can the Japanese government do to fix the issues raised in this article? The linguistic issues raised here would be best resolved by the methods suggested by many scholars in the field of legal translation, such as the use of neutral language services,190 and more direct participation by the Japanese government in the drafting phase of multilateral agreements.191 However, the institutional problems of the Japanese government and judiciary are not something that can be fixed over night. In order to comply with the international order imposed by the WTO and other international organizations, the Japanese government should first acknowledge the dysfunction of its separation of powers structure, and realize its international obligation to start correcting the structures immediately.

186 Vienna Convention on the Law of Treaties, Jan. 27, 1980, art. 33(3), 1155

U.N.T.S. 331. 187 JAPAN CONST. art. 98, para. 2. 188 Matter of Sinclair, 870 F.2d 1340, 1343 (7th Cir. 1989). 189 Shelton, supra note 56, at 611. 190 Christopher B. Kuner, Linguistic Equality in International Law:

Miscommunication in the Gulf Crisis, 2 IND. INT�L & COMP. L. REV. 175, 188-189 (Fall 1991).

191 �ARČEVIĆ, supra note 5, at 208-215.

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