Manila Standard Today | 19 February 2007
Manila-Tokyo deal: A toxic nightmare
By Atty. Rita Linda V. Jimeno
I first thought that my Japanese clients were trying to patronize me (and us Filipinos) when they said that Japan did us an injustice in the Japan-Philippines Economic Partnership Agreement. On its face, the treaty seems innocuous and innocent, what with its ambiguous terms and words. To some it may even sound promising because it seeks to remove barriers to investments, trade of goods and services between the Philippines and Japan. As we are a people raring to leave this country in the first opportunity, the prospect of the treaty triggers excitement among those seeking foreign employment and among manpower agencies that deploy Filipino workers.
A close scrutiny of the treaty, however, reveals that it is far from being harmless. Clearly, it is not a product of free and open negotiations between two nations holding equal power and respect for one another. The power imbalance tilted in favor of Japan is apparent in the entirety of the treaty. Environmentalists and legal experts who scrutinized the treaty see a nightmare in the same magnitude as global warming.
Lawyer Tanya Lat of the Initiatives for Dialogue and Empowerment through Alternative Legal Services Inc. wrote an exhaustive paper on why the agreement is a toxic treaty. She said that: “Far from being a genuine economic partnership, the agreement is in truth and in fact a repressive agreement that sacrifices the health, the environment, the long-term economic development and ultimately the dignity and the sovereignty of the Filipino people at the altar of Japanese and corporate and governmental interests.”
I will discuss this treaty’s negative impact on the economy and national sovereignty in a forthcoming article. For now, my focus will be on why the treaty, if ratified by the Senate, will be an environmental bomb ticking away to explosion.
Defenders of the agreement say it is not true that the treaty will serve as a license for Japan to export to the Philippines toxic wastes. They say that while there is a reference to zero percent tariff rates for the entry of toxic and poisonous elements such as ash and residues from municipal wastes, or those containing arsenic, mercury and thallium, waste pharmaceuticals and clinical waste, sewage sludge and wastes from other chemical and allied industries-this is irrelevant, they insist, because there are local laws and international agreements that will prevent the export to our country of these dangerous wastes.
But consider this: Article 29 of the bilateral agreement provides for the preferential trade of products which “cannot be restored or repaired and are fit only for disposal” and “parts and raw materials which can no longer perform their original purpose nor are capable of being restored or repaired.” What can this mean? Obviously they can only refer to junk and waste products, including toxic and hazardous wastes which are not capable of being restored to their original uses or recycled and are fit only for disposal. Lawyer Lat says that this operates as a blanket invitation to Japanese businessmen to export Japan’s wastes and for Filipino businessmen to import them for the huge profits because of the zero tax.
Embodied in the treaty is a schedule of tariff rates and a listing of products with their corresponding tariff ratings. Among those given preferential or zero percent ratings are toxic and hazardous wastes such as pharmaceutical and hospital wastes, sewage sludge, poisonous residues from the manufacture of iron and steel and several others. If Article 29 and the zero tariff on hazardous and toxic wastes listed in the schedules had no relevance or was a mere surplusage, as the treaty proponents claim, why was it written into the treaty at all?
The treaty proponents say that the key to our protection is in the implementation because we have an existing law that prohibits the importation of toxic, hazardous and nuclear wastes. Also, they say, we have the Clean Air and Clean Water Acts and the Ecological Solid Waste Management Law. They add that we are party to an international agreement, the Basel Convention on the Trans-boundary Movement of Hazardous Wastes. These, they say will act as sufficient firewalls to prevent the entry of Japan’s toxic wastes.
Realistically speaking, however, Lat says that these firewalls are not effective in keeping out toxic wastes. In 1999, 122 containers declared as “recyclable paper” entered our ports. These turned out to be clinical wastes fit only for disposal. Back then, the Basel Convention was already in force. But what is more disturbing is that while Japan and the Philippines are signatories to the Basel Convention, these two countries did not ratify the Basel ban against the trade of hazardous wastes meant for recycling. This means that even now, Japan can still export to the Philippines its hazardous wastes under the guise of recycling, Lat says.
Voila, there you have it. If the agreement gets the Senate ratification, our country will be inundated by hazardous and toxic wastes in a magnitude only the imagination can reach. There will no longer be a need to disguise toxic wastes as recyclables because the treaty allows its trade at zero tariff. The result? Illnesses and diseases in epidemic proportions in a country that even now, suffers from health care deficit not only because of the high cost of medicine but more because of the flight of our health care professionals. How our country could deal with this scenario is a frightening nightmare.
Under Philippine law, binding treaties and international agreements constitute part of the law of the land. In the event of irreconcilable conflict between domestic laws and treaties, the rule that “the later enactment supersedes the earlier one” will apply. Therefore, because the agreement will be more recent, if approved, than our Clean Air Act, Clean Water Act, the Toxic Substances and Hazardous and Nuclear Wastes Control Act and the Ecological Solid Waste Management Law, the agreement would in effect create an exception to the prohibition of importation of toxic and hazardous wastes.
One other disturbing provision in the agreement is the statement that the Philippines shall examine the possibility of amending or repealing its laws to implement the treaty. This has to be so because under international law, it is a fundamental principle that all the provisions of a treaty must be given effect to the extent possible. Thus, Article 29 of the agreement and the tariff schedules pertaining to toxic and hazardous wastes will have to be given effect.
What is in it for us that we are offering to Japan these gifts? So our labor force may be permitted to work there? But hold on, there is a provision that requires the study of the Japanese language as a condition for employment. We have practically nothing to export to Japan except our labor force while Japan can export to us practically anything including toxic wastes and used right-hand drive vehicles that compromise our health and road safety. Do we really want a treaty that looks more like a pact between David and Goliath?