The The Japan-Philippine Economic Partnership Agreement [JPEPA] and the Issue on Hazardous Waste

Classes in my GDL course have commenced and I am already in the midst of a forest of books and cases. Still the desire to write about the JPEPA and the issue on hazardous waste is one I could no longer ignore. So like the poor mariner heeding the siren's call, I foray headlong into the rocks and crevices of the bilateral contract we call the JPEPA.

Environmental Law is a field of law closest to my heart and soul. In fact, in my LLM degree at University College London, one of my favorite courses was environmental law.

There have been a plethora of concerns about the JPEPA treaty- sovereignty, bilateral trade, and environmental issues abound. Undoubtedly, once ratified by the Philippine Senate, the treaty would introduce far reaching consequences to the Philippines.

The issue on the possible transport of waste to the Philippines from Japan is one of the thorny topics of debate. In the context of environmental concern, opponents of the treaty fear the entry into the Philippines of scrap and waste that may include hazardous or nuclear waste from Japan's health and industrial institutions under Article 29 (2) (j) of the treaty. This fear is well founded.

Proponents of the treaty argue that there are sufficient Philippine environmental laws that prevent such a possibility. On its face, they have a point. On the domestic front, Republic Act No. 6969 [ Toxic Substances and Hazardous and Nuclear Wastes Control Act 1990] prohibits the entry, transit or storage and disposal of hazardous and nuclear waste in Philippine territories. Republic Act 8749 [The Clean Air Act] and Republic Act 4053 [ Prohibits the entry of used clothing and used rags] are also relevant. On the international level, the Philippines is bound by the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal on 21 October 1993. Japan is also bound by the Basel Convention by its accession to the treaty on 17 September 1993.

The terms of the Basel Convention are the most relevant to the provisions of the JPEPA Bilateral Treaty considering its international stature and Philippine domestic environmental laws are not binding to Japan.

Potential problems may arise pertaining to the definition of waste or hazardous waste. Both parties may have different definitions in their respective domestic jurisdictions and I may be wrong but I could not find any definition in the treaty [ 153 pages long] itself. Moreover, how do the parties of the treaty determine the percentage of a mixed waste and scrap transported items that would classify the load as waste or scrap? In other words, if a pallet of transported goods from Japan contains a mixed scrap and hazardous waste load, how would the parties determine whether to classify it as a scrap or hazardous waste load?

In the event of conflict between the definitions of hazardous waste or its percentage composition in a load adopted under the treaty and domestic definition in Philippine law, is there a need to amend or repeal the latter to conform with the definition under the treaty?

It is submitted that under international law, the provisions of the treaty will prevail over the domestic law pursuant to the pacta sunt servanda principle. But there is really no need to amend the conflicting domestic laws. Take the case of the United Kingdom. In the UK case of Factortame [No 2] a UK domestic law was in conflict with European Union [EU] law on discrimination. The House of Lords "disapplied" the offending provision of domestic law instead of repealing it and enforced the international EU law. In this wise, United Kingdom Parliamentary Sovereignty is preserved while adhering to its international obligations.

If both parties could not agree under the treaty as to disposal of scrap and waste, recourse to the Basel Convention would resolve the disagreement. The Philippines and Japan are both parties to the Convention thus binding themselves to its terms. Waste and Hazardous Waste are defined in Articles 1 and 2. More importantly, the transboundary movement of hazardous waste is undertaken in compliance with the principle of "Prior Informed Consent"- The state party of destination must first be informed of the proposed hazardous waste movement and its consent to the transport be granted before the movement is undertaken. In other words, the Philippine state's prior informed consent must first be obtained by Japan before any transboundary of hazardous waste to the Philippines would even commence.

However, laws and conventions are only effective depending on the political will of the state. Granting that the Arroyo government has the political "balls" to be nonsubservient to illegal demands by Japan, the Basel Convention prevents Japan from dumping hazardous waste into any inch of Philippine territory without the consent of the Philippine government. Hence, the fear that the Philippines could become a dumping ground for hazardous waste from Japan is a creation borne of being uninformed. It could only happen if the Philippine government surrenders its Constitutional obligation and responsibility to protect the state from environmental destruction and bow down to economic and trade pressures from Japan.

But then that would be another story.....