Facts

The recently concluded Japan/Philippines Economic Partnership Agreement (JPEPA) includes within it a list of wastes, including hazardous wastes, for which tariffs are to be eliminated.

Japanese waste dumped by the boatload on Taizhou, China. Waste includes hazardous waste computers, computer monitors, old transformers, sealed refrigeration units, etc. ©2004 Basel Action Network

Tariff elimination is designed to and will have the effect of facilitating trade. Many of these wastes are wastes which are designated wastes under the Basel Convention, of which Japan and the Philippines are both Parties. The Basel Convention obligates Parties to minimize the transboundary movement of hazardous waste and requires Parties to become self-sufficient in wastes covered under the Convention. Further the Basel Convention provides for the sovereign right of Parties to prohibit the importation of any waste. Indeed in a consensus decision concluded in 1995, where the Philippines and Japan were both present, the Third Conference of the Parties to the Basel Convention passed Decision III/1 to adopt an amendment to the Convention to totally prohibit all exports of hazardous wastes for any reason from countries that are members of the OECD/EU or Liechtenstein (Annex VII) to all other countries. Japan is an Annex VII country, and the Philippines is not. While neither Japan nor the Philippines has yet ratified the Basel Ban Amendment, it is known that the Philippines possess a partial import ban on hazardous wastes. ¹ Government proponents in the Philippines have been repeating claims that the inclusion of waste streams in the tariff elimination program was merely a technicality and would not trump the Basel Convention nor the national laws of the Philippines.

Findings

Japan's Campaign Against the Basel Convention and For Free Trade in Wastes

The other pointed example of Japan's efforts to undermine the objectives of the Basel Convention is their single-handed (with the help of the US Commerce Department) launching of the so-called 3R's initiative under the auspices of the G8. One of the primary goals of the 3Rs waste initiative has been the elimination of trade barriers to waste. The most obvious example of a trade barrier existing for waste is in fact the Basel Convention and the national import bans it allows. When confronted with the contradiction by NGOs and by Basel Parties, Japan has softened its rhetoric somewhat on this matter, but it is clear that their intention remains to provide "regional" solutions to waste issues wherein Japan can rely on its Asian neighbors to take the mountains of Japanese waste arisings from that island nation. BAN has called the 3Rs Initiative of Japan a "Mask for Toxic Trade". ³

Examples of Japanese Waste Trade Already Common

Already BAN and Greenpeace have documented massive volumes of Japanese wastes, some hazardous, flowing illegally into the Chinese port of Taizhou and landing in the infamous electronic waste processing areas of Guiyu in Guangdong Province and in the Taizhou area. To our knowledge, this importation continues to this day. ⁴ Further in the past, Japan has attempted to export high volumes of auto shredder fluff to foreign locations including to Washington State in the US.

In 1999 the Japanese company Yugengaisha Nisso of Tochigi exported 124 seagoing containers of medical waste on the Philippines in 1999 in the guise of it being household garbage. At that time one Philippine newspaper ⁵ reported 'We came out in favour of globalisation, but we never imagined that it would include the globalisation of garbage and large-scale exportation of possibly infectious and toxic trash." ⁶

Government's Claim that JPEPA Waste Trade Listings are Irrelevant is Wrong

The Philippines government representatives that negotiated the JPEPA have made repeated claims in the press that the inclusion of wastes in the tariff reduction program are not relevant, are a mere technicality, and cannot trump national law or the Basel Convention. These statements are misleading at best, and outright lies at worst.

Treaties, once ratified, become equivalent of national law. Nowhere is it assured that the Basel Convention has more weight than the JPEPA and can trump the bilateral treaty. Where conflicts in the law exist, it is imperative to prevent such conflicts prior to signing the treaty. Otherwise, it is very likely that the courts may favor the most recent and more specific agreements as having precedence over the older, more general agreements. In this case the JPEPA is the most recent agreement.

This fact begs the questions as to why the wastes were included in the JPEPA at all. There is no compelling reason (no technicality) as to why these wastes must be included in the agreement if they are in fact in conflict or "irrelevant". Contrary to what has been insinuated in the press, the World Trade Organization (WTO) does not require that wastes tariffs are eliminated. There can be no legitimate reason for these wastes to be listed as necessary tariff elimination targets to facilitate their trade when this runs in contradiction to the Basel Convention obligations, the Basel Ban Amendment and the national importation bans under Philippine law.

Jeremy I. Gatdula, a lawyer specializing on international trade agreements, summed up the government's claims in the Philippine Inquirer and called the government's logic "simply wrong and beside the point." He said JPEPA was in fact a treaty, and treaties under Philippine jurisdiction are treated as part of Philippine law and as the equal of legislative enactments. "If and when JPEPA takes effect, the treaty would have the effect of overriding previous legislation in conflict with it," said Gatdula.

JPEPA Appears to Beg a WTO/Basel Confrontation

The JPEPA's inclusion of trade liberalization of wastes that appear under the Scope of the Basel Convention seem indeed to be pointing to a desire on the part of the negotiators to create a situation where a WTO challenge of the Basel Convention will become likely and because it will be perceived as the weight of two treaties JPEPA and WTO against one – the Basel Convention, it may well be concluded in favor of the WTO to the complete undermining and overturning of the Basel Convention's strongest, trade related controls and prohibition obligations. It has long been known that the Basel Convention as well as other multilateral environmental agreements (MEAs) are partly in contradiction to one another's obligations. ⁷ To date, most nations do not wish to see MEAs to be undermined by the trade liberalization requirements of the WTO. However it is believed that strong factions in the governments of such countries as the United States and Japan are of the opinion that waste is a primarily a commodity and trade restrictions in waste are ill founded. The Basel Convention, promoted primarily by developing countries on the other hand, concluded that waste was not primarily a "good" but rather a "bad" to be controlled and prohibited from being freely traded, in particular from developed to developing countries.

Conclusion

The government of the Philippines and Japan have been less than truthful about the significance of the inclusion of waste trade liberalization provisions in the JPEPA. Indeed the inclusion of these provisions have serious national and global implications regarding the overarching policy of national self-sufficiency in waste management and appear designed to create a confrontation between these global norms, established in the Basel Convention, and free trade agreements. However worthwhile tariff elimination may be for many products, it is well known that controls and prohibitions for some materials subject to trade make strong ethical, environmental and even economic sense. Hazardous waste trade is one such material that the global community has sought to control and in those instances where their export equates to gross cost externalizations to weaker economies -- outright prohibit. Japan, being the leading country attacking the Basel Convention's obligations on various fronts, has highly suspect motivations in the JPEPA. In fact, the established laws designed to rein-in free trade in waste are under attack in these tariff reductions. Steps must be taken immediately to prevent ratification of this agreement until all of the wastes are removed from the agreement.

Recommendations

1. Both the Philippine and Japanese Senate and Diet must refuse to ratify the agreement until all listings of waste are expunged from tariff reduction provisions.
   
   
2. Japan and the Philippines must both ratify the Basel Convention's Ban Amendment at the earliest possible date to send a strong message of intent to uphold the principles of the Basel Convention on environmental justice and national waste management self-sufficiency. It is glaring that both of the countries have still not ratified the Basel Ban after being called upon by the Parties to do so since 1995.
   
   
3. A full impartial multi-stakeholder inquiry in both Japan and the Philippines must be made to determine how such provisions were included in the JPEPA, who promoted them and the motivation for this.
   
   
4. Japan must completely remove from the 3R initiative all references to eliminating or reducing trade barriers for wastes.
   
   
5. Japan and the Philippines must embark on a serious program to prevent hazardous and other wastes at source via toxics use reductions and elimination of excessive packaging and planned obsolescence.