CURRENT TRADE CONCERNS
Elpidio V. Peria
8 November 2015
The Ministry of Foreign Affairs and Trade of New Zealand recently released on its website the full text of the Trans-Pacific Partnership (TPP) Agreement, a regional trade agreement that is billed by the New York Times as the largest regional trade accord in history between the United States and 11 other Pacific Rim nations (Canada, Mexico, Peru, Chile, Japan, Vietnam, Brunei, Malaysia, Singapore, Australia and New Zealand) — a far-flung group with an annual gross domestic product of nearly $28 trillion that represents roughly 40 percent of global G.D.P. and one-third of world trade.
The Philippines is not part of the agreement though it has been reported that DTI Secretary Domingo wants the country to join the trade pact and with the recent news that Indonesia is planning to join the TPP, the Philippines could be pressured into joining the group.
We will start a series of write-ups analysing key elements (around 30 chapters) of the agreement and we hope to look at some of the items in the agreement that would stand out in such a way that will require the Philippines to make a significant change in its policy framework.
We will start out with Chapter 2 on National Treatment and Market Access for Goods, but what captured my attention is section C on Agriculture, particularly article 2.29, on Trade of Products of Modern Biotechnology.
Reading closely this part of the section, the TPP is silent on any references to the Cartagena Protocol on Biosafety, an existing international instrument dealing with the transboundary movement of living modified organisms, which in our jurisdiction is referred to as GMOs or genetically-modified organisms; GMOs are, in essence, products of modern biotechnology.
The fact of the matter is that the Philippines ratified the Cartagena Protocol and if it joins the TPP, it may be able to retain its existing regulations based on the Cartagena Protocol since the TPP says in para. 3 of art. 2.29 that “Nothing in this Article shall require a Party to adopt or modify its laws, regulations, and policies for the control of products of modern biotechnology within its territory.”
However, there are specific procedures and requirements in the Cartagena Protocol that it cannot insist on its TPP trade partners given that the TPP does not mention the Cartagena Protocol at all as a basis for determining whether regulations on trade of products of modern biotechnology are acceptable or not among all the TPP trade partners.
Some of these specific procedures and requirements are :
a) Provisions on the application of the advanced informed agreement (article 7 of the Protocol);
b) Provisions on the procedure for living modified organisms intended for direct use as food or feed, or for processing (article 11 of the Protocol)
c) Provisions on handling, transport, packaging and identification (article 18 of the Protocol).
These provisions are there in the Cartagena Protocol as they are meant for the protection of the importing country, that is, the receiving country, which is the Philippines, for any untoward release into the environment of these living modified organisms, which may harm its food systems from contamination of these products of modern biotechnology.
The existence of a distinct regulatory system on the trade of products of modern biotechnology which is the TPP, that does not make reference to an existing regulatory system on the transboundary movement of these same products of modern biotechnology which is the Cartagena Protocol will serve to weaken that existing system since what will eventually happen is that the practices and norms of that distinct regulatory system will become the dominant system. Given that the protections and requirements of the existing system will gradually not be used, then even the Parties to the system will no longer be compelled to comply with that system. In time, the existing system will become irrelevant as the system under the TPP will become the norm.
Even if the Philippines will not be compelled to change its existing rules under the Cartagena Protocol if it joins the TPP, it may be difficult for it to apply these rules to its TPP trading partners as the latter cannot be compelled to adhere to the Cartagena Protocol. If the Philippines is sued by its TPP trading partner for imposing Cartagena Protocol requirements, then it will have to pay up or abide by the ruling of the Committee under the TPP dealing with this issue. It will eventually be forced to abandon its rules under the Cartagena Protocol, to satisfy its TPP trading partners.
We will look at other policy and regulatory areas that will be significantly affected if the Philippines joins TPP in succeeding write-ups on this topic.