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RP-Japan pact could override existing laws, legal experts warn
[October 25, 2006]

RP-Japan pact could override existing laws, legal experts warn


(Business World (Philippines) Via Thomson Dialog NewsEdge) The Japanese-Philippine Economic Partnership Agreement (JPEPA) could override some provisions of existing laws, including one which bans the importation of waste materials, used garments, and non-recyclable items, legal experts warned in separate interviews yesterday.



Trade lawyer Jeremy I. Gatdula of Trade Advisory Services said in a phone interview that JPEPA, which - among others - imposes zero-rated tariff on waste materials from Japan, effectively contradicts state policy against importation of most waste.

"If you look at JPEPA and you look at the law, and if there is an actual conflict, what will happen here is that JPEPA will prevail," he said.


Laws which may be in conflict include the Toxic Substances and Hazardous and Nuclear Wastes Control Act of 1990 (Republic Act 6969), RA 9003 or the Ecological Solid Waste Management Act of 2000, and RA 4566 (enacted in 1966) which criminalizes the importation of used clothing and rags.

Mr. Gatdula had earlier said that international law binds a country to its trade pacts once it has been signed and ratified by the Senate.

International law expert Enrique V. dela Cruz of the University of Santo Tomas Faculty of Civil Law said that, as a "general rule" - backed by no less than jurisprudence from the Supreme Court, treaty provisions should be observed, lest trade sanctions be incurred.

"When a country enters into a treaty, we are bound by its provisions. Under international law, we cannot use domestic law to avoid the obligations of a treaty," he said.

Moreover, he warned that a "constitutional crisis" could ensue should a local court invalidate any part of a treaty that the Senate has already ratified.

"We'll have two equal branches [of government] saying two different things," he explained, stressing that international courts or other arbitration bodies "will not care even if our courts invalidate the [treaty]."

Lawyer Ma. Tanya Karina A. Lat of the Initiatives for Dialogue and Empowerment through Alternative Legal Services, Inc. (IDEALS), a civil group studying the JPEPA, said that - at best - this remains a "tricky legal issue."

"It's precisely a gray area. It's those gray areas that you should avoid with in a trade negotiation," she said.

IDEALS has publicly questioned the negotiation process of JPEPA, citing the lack of transparency, consultation, and its disadvantage to the Philippines.

President Gloria Macapagal Arroyo and Japan Prime Minister Junichiro Koizumi signed JPEPA in Helsinki, Finland last September 9, the product of two years of talks.

JPEPA provides a wide-ranging framework for future bilateral deals, among others: allowing more Filipino health workers to work in Japan and providing zero-rated tariff on agricultural products, in exchange for tariff cuts on Japanese industrial and automotive products.

Alarm has been raised, however, over the zero-tariff provision on waste materials like sewage sludge, clinical waste, ash and residues.

Senator Pia S. Cayetano, environment committee chairman, said the the treaty will "go through the eye of the needle." "I find this situation unacceptable...We cannot even manage our own garbage; So how can we take responsibility for the wastes of other countries?" she said.

Senator M. A. Consuelo "Jamby" A. S. Madrigal called the JPEPA "another time bomb against the environment" in the wake of the oil spill disaster around Guimaras Island, reportedly the country's worst environmental crisis.

But the inclusion of the provision on toxic waste in the Philippines ' trade pact with Japan was part of the negotiating team's strategy and is in accordance with World Trade Organization rules, Trade Secretary Peter B. Favila told reporters in a briefing yesterday.

"It does not mean that... we allow them to ship waste to us. It [provision on waste] does not mean anything," he said.

Since waste is considered a tradeable good under the World Trade Organization (WTO), Mr. Favila said both sides included it in order to avoid offering another product that has a bigger economic implication. "If we didn't do it, we will be forced to offer another product...It's a negotiation strategy," he explained.

Since the waste and toxic materials are offered on both sides, Mr. Favila said Japan will not ship its waste to us since the Philippines can do the same to them. "There's no desire on our part to ship toxic and hazardous waste, so that they can ship toxic and hazardous waste," Mr. Favila said.

Foreign Affairs executive director Marilyn J. Alarilla said the Philippines merely followed a generally accepted principle that free trade agreements should cover at least 90% of all tradable goods, "...so we are able to comply with the general ideas of [WTO] of what constitutes substantially 'all trade'."

Ramon Vicente Kabigting, director of the Trade department's international affairs office, said the waste provision is no cause for alarm.

"This happens to be an item where you can lower the tariff and yet you have sufficient defenses to prevent the harm. You can even use the [JPEPA] to improve those defenses and we will...even now, we are working with the Japanese to help set in place those commitments to one another to really strengthen prevention of such unlawful movement [of waste across borders]," Mr. Kabigting said.

He noted that the Philippines should benefit greatly from the treaty, as the trade negotiators were able to get concessions on the country's agricultural and processed food products. "We were also able to get Tokyo to agree to admit caregivers and health workers," Mr. Kabigting added.

"If you look at other countries that had bilateral agreements with Japan, over the 12 months after the implementation, there were substantial increase in total trade and investments," he said.

"Our real concern on JPEPA is that more Filipinos should be aware of the opportunities it offers," Ms. Alarilla said.

Messrs. Favila and Kabigting assured there are enough safeguards to prevent Japan from actually shipping toxic and hazardous waste to the Philippines, citing WTO rules and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal.

The Palace itself stepped into the fray. "The overall caveat on toxic waste [is] that which will be against our national interest, we will not allow," Executive Secretary Eduardo R. Ermita stressed in a press conference yesterday at the Palace. "We will not allow anything that will be against our environment. If it's against our environment, that's against our interest."

Copyright 2006 BusinessWorld (Philippines). Source: Financial Times Information Limited - Asia Intelligence Wire.

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