RP, JAPAN SLATE NEW JPEPA TALKS

Sen. Miriam Defensor Santiago, chair of the committee on foreign affairs, said she has deferred her Jpepa sponsorship speech, to give more time for senators to study her committee report, and to give time for foreign affairs secretary Alberto Romulo to discuss and negotiate with the Japanese ambassador a possible exchange of notes before the Senate debate.

“The committee recommended conditional concurrence, and insisted on compliance with 15 specified provisions of the Philippine Constitution. The senators first want me to explain what all this means. I have a problem using layman’s language to explain complex issues of political economy,” Santiago said.

But the senator said that her printed and bound Jpepa report for senators, written in layman’s language, will be distributed this week, possibly together with a separate report written by Sen. Mar Roxas, chair of the committee on trade and commerce.

“Unfortunately, the reports will take a lot of reading, because they are thick. That would delay the concurrence process. It cannot be helped,” the senator said.

Santiago said that in a nutshell, the Philippines is merely asking for the same concessions that Japan has already granted in its economic partnership agreements (EPAs) with such countries as Singapore, Malaysia, Thailand, Brunei, and Indonesia.

The senator said that senators are wary of the term “conditional concurrence,” because they are unfamiliar with it.

“The term ‘conditional concurrence’ is often used in the United States to refer to a package of reservations, understandings, and declarations that become a common attachment to major treaties, particularly to multilateral human rights conventions. This became the practice in the last century, because strictly speaking, the Senate cannot amend a treaty,” she said.

Santiago said that in the past, the Batasan during the martial law years made a similar conditional concurrence with the UN Convention on the Law of the Sea, coincidentally the center of another treaty controversy in Philippine politics today.

“My original recommendation was for the Senate to extend conditional concurrence, to be followed by an exchange of notes between the two governments. Now we shall reverse the process: exchange of notes shall come first, to be followed by Senate concurrence,” the senator said.

Santiago said if the Jpepa is accompanied by an exchange of notes between the two governments, the senators would find it easier to understand Jpepa implications. “The main issue is the difference in viewpoints.

Japan sees Jpepa as a free trade area agreement involving the elimination of import duties and the inclusion of all economic sectors, such as trade in services and trade-related areas.

The Philippines believes that Jpepa should support our economic development, contribute to the elimination of poverty, and include measures to promote the structural transformation of the Philippine economy,” she said.

Santiago said it was “highly laudable” of Japanese Ambassador Makoto Katsura to explore the possibility of an exchange of notes that will facilitate Senate concurrence in Jpepa.

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Transcript of Senator Miriam Defensor Santiago ’s interview

On the Commission on National Territory

Present in the Joint hearing of the Senate Committees on Foreign Affairs, and National Defense and Security were Senators Miriam Defensor Santiago, Rodolfo Biazon, and Juan Ponce Enrile. The panel of guests consisted of Prof. Merlin M. Magallona of the UP College of Law ; DFA Usec. Rafael Seguis for Special and Ocean Concern; Atty. Henry Bensurto, Secretary General of the Commission on Maritime and Ocean Affairs; Usec. Milo S. Ibrado of the National Security Council; and Mr. Diony Ventura , Administrator of the National Mapping and Resource Information Authority [DENR-NAMRIA]

We have reached a consensus in this committee hearing, both among the senators and members of the resource panel, that before we even try to discuss the pending bills about the archipelagic baselines in both the House of Representatives and the Senate, we must discuss the matter very carefully because it has many unintended consequences. It is not as if we never declared our claim to ownership over the Kalayaan Island Group. This has been done since 1978. So the international community cannot say that we have waived our rights over there, or that by our mere silence we have consented to ownership by other countries.

However, the point today is that if we include the KIG in our definition in our archipelagic baselines, that would be considered 1) a violation of international law since the drawing of baselines has never been an accepted method in acquiring territory. There are other methods like occupation, conquest, or cession. So if we include the disputed KIG and the Spratlys just by drawing archipelagic baselines we would already be violating international law.

Number two, we would also be violating the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea which concerns the disputed KIG. In 2002, all the claimant countries agreed that they would simply observe the status quo, and not use force or threat of force in implementing their claims of ownership and sovereignty over these islands, but they would instead settle all their territorial disputes by means of negotiation and mediation, and that they would observe utmost self-restraint. So if we draw our baselines, and by that means try and claim ownership over the islands by including them within our baselines, that would be considered as an offensive act by our co-parties to the 2002 declaration. It would naturally be a source of irritants between our country and with China and other claimant countries.

During the hearing, we gave some examples of how complex the problem is if we declare ourselves as an archipelagic state. That is different from simply being an archipelago. An archipelago is a geological state. But if you declare yourself as an archipelagic state under the UNCLOS, then in the case of the Philippines , our territorial seas will immediately shrink by miles. In that case the waters around, between, and connecting out islands will no longer be our internal waters over which we have complete sovereignty. They would become archipelagic waters of which there would be a right of innocent passage by foreign vessels. There would be a right of archipelagic sealanes passage also by foreign vessels, perhaps of a military nature. We would have to allow in our archipelagic waters our immediate neighbors to continue to fish, if that was their practice before. So we suffer a lot of inhibitions and restrictions if we declare ourselves an archipelagic state by drawing our archipelagic baselines.

For that reason, since we don’t have the expertise to handle all these legal niceties, plus the scientific and technical knowledge to be able to draw the maps properly. Both the resource panel and the two committees decided to file a committee report to the Senate plenary session to establish a Joint Commission on National Territory. There is a counterpart resolution in the House, so if the two chambers concur, then all it needs is the signature of the President.

The only problem now is whether the Office of Maritime and Ocean Affairs of the Office of the President support the establishment of the Commission or will instead claim that the Commission should operate under them. In other words, should we have a Commission on National Territory that is legislative in character as I have proposed, or should it be executive in character. Even if it becomes an executive agency, I have no strong objection. I just want a complete, scientific, and scholarly study and analysis of the impact of the archipelagic doctrine on our national territory.

On the JPEPA

The senators are asking for time to study the full committee report. In this case, the senators told me that they find it hard to understand the resolution and its annexes. I don’t blame them because it is so technical. That is why, in anticipation, I already told my secondary chair that each of us should prepare a bound volume. Mine was finished. I thought that I would publish one volume combining the work of the two committees. Mine was thick, but his was even thicker. So we have to issue two volumes next week, and I will not sponsor it yet because the senators find it a very strange and new territory for them.

24 April 2008

Transcript of Senator Miriam Defensor Santiago’ s interview

On the proposed extension of the CARP Law

I am in favor of the CARP extension. I filed a similar counterpart bill here in the Senate and I will ask the chair of the Senate committee on agrarian reform to schedule it for public hearing, or, if it has already been heard, to submit its committee report.

We really have to extend the CARP for the reason that it has failed in its objectives. Ang tagal-tagal na ng ating CARP, pero hindi ito nakatulong sa ating mga magsasaka. Hindi rin ito nakatulong sa ating supply ng bigas.

Ang pilosopiya ng CARP ay ibigay sa magsasaka ang lupa mula mga nagmamay-ari ng lupaing agrikultural, para ang nagtatanim ay siya ring may-ari. Kabaligtaran ang nangyari dahil nakakita ang mga may-ari ng lupa ng loophole. Nag-apply sila for conversion ng lupa nila para hindi tawaging agricultural ang lupa nila para hindi mapasailalim sa CARP, at tawagin itong residential, commercial o industrial. Exempt na nga sila sa agrarian reform, kikita pa sila ng windfall profits.

Pinagbawal iyan ng ating batas, pero dahil sa graft and corruption sa agrarian reform, nagawa pa rin nila iyon. Tatanggapin na lang ba natin iyan na nagtagumpay ang mga crooks na ito sa paglinlang sa ating mamamayan tungkol sa agrarian reform. Hindi tayo nakakakamit ng tunay na repormang agraryo dahil ang mga maliliit na magsasaka ay walang pera kapag naghihintay ng ani nila, dati nanghihiram sila sa kanilang landlord. Ngayon, kapag wala na silang pera, binebenta nila ang kanilang lupa na nakuha nila sa agrarian reform. The effect is we have not given land to the landless.

Also, hindi sila kumikita sa kanilang ani dahil hindi sila binibigyan ng gobyerno ng support services gaya ng fertilizer, irrigation, at postharvest facilities. In effect, the agrarian reform program has been a big disaster to our country. Dapat ipakulong natin ang mga absentee landowners na nakakita ng palusot sa agrarian reform.

Hinihikayat ko ang Senado na imbestigahan ang Department of Agrarian Reform kung ano ang mga pangalan ng mga tao at korporasyon na nakakuha ng conversion, gaano kalawak ang lupang na-convert nila, at ano ang nangyari sa conversion nila.

Transcript of Senator Miriam Defensor Santiago’s interview

On the baselines bills

I believe that the archipelagic baselines bills filed in both chambers of Congress were sincerely intended and crafted out of intellectual honesty. I won’t say anything derogatory to the authors of the bills, except that they separately treat the archipelagic problem, particularly what are the boundaries of our national territory in a piecemeal manner. They pick certain provisions from the UNCLOS and then they try to apply it in their bills. You can’t do that.

The Philippines is a geographical archipelago, but if it makes a declaration that it is an archipelagic state, immediately we lose our rights to our internal waters. They will become in effect a highway for foreign vessels. Secondly, we would lose our right to protect our local fishermen from poaching of foreign vessels. These are just examples. There are many consequences of a declaration of an archipelagic state.

So first we must talk to the experts, meaning the scientists familiar with the measurements of the maritime boundaries. And we must talk with the legal experts, if possible officials in the foreign affairs connected with the negotiation of the UNCLOS.

I am not necessarily against those bills but I think it is premature to act on them at this time since the bills happen to include the Kalayaan Island Group and other disputed islands within the baselines.

Even the international limits in the Treaty of Paris do not include those disputed islands within our territorial boundaries. In doing so, the bills constitute a violation or at least a disregard of the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea. That could be considered an offensive act of aggression by China.

On some senators on the doubting the legality of JPEPA’s conditional concurrence

I simply have to educate them. They are afraid because they don’t know about it. Fear is usually the result of ignorance. They’ve never had any experience with it. But in the United States , they have been practicing it since the 19th century and nobody has ever objected. The United States has entered into treaties with the world’s greatest powers, especially with Russia during the Cold War, and Russia never objected.

I know that a colleague has issued a press release, which I view as entirely unfortunate. He has fallen into the trap a freshman normally would. When you read for example the Vienna Convention on the Law of Treaties, you have to be aware that the Vienna Convention is not a codification of general international law. It is not as if you are reading the Revised Penal Code, that if you don’t find it there, then it is not allowed by law. That is not the case with an international treaty particularly when it is multilateral in nature.

In any event, this is a very technical matter and I would be happy to educate my colleagues at this point. I think it is unfortunate to muddy the waters this early. The only question here is can we explain why Jpepa is advantageous to the Philippines during the plenary debate. Thereafter, we can proceed with subsidiary question of its procedural niceties.

Transcript of Senator Miriam Defensor Santiago’s interview
21 April 2008

On the rice crisis

The rice problem as we know is not national in nature nor is it regional (to Southeast Asia). It is global in nature. For the Senate to investigate the rice problem will have to confine itself to certain activities of Filipino corporations or nationals, for example: Are they hoarding? Are they manipulating? Is there a conspiracy in respect to trade? And so on. In effect, that would be a criminal investigation.

But if we are going to investigate the rice situation, that would necessarily be global in nature, and we simply do not have the faculties to conduct such an investigation.

Predictions that President Arroyo will be overthrown because of the rice crisis are not related to reality. If that is the case, then all other rulers in Southeast Asia will be overthrown as well.

On the baselines bill

The baselines bill is another mistake. In the first place, these people who have been so valuable in the media do not realize the profundity and the complexity of the baselines issue. I remember the very first article I wrote for the Philippine Law Journal of the University of the Philippines when I was taking my masters in the University of Michigan was on the archipelagic doctrine and that was the start of articles that my friends and I were writing at that time because it is very complex.

Akala nila basta magdrowing ka ng baselines, tapos na. And they included certain contested islands there. There are many complications there. The boundaries of the Philippines will become very much smaller if we declare it an archipelagic state under the UN Convention on the Law of the Sea because the boundaries of the Philippines , as specified in the Treaty of Paris are
so much wider. So why should we be in a hurry to narrow down our own internal waters? If we join the rush to comply with the archipelagic baselines deadline—which is May next year—that will give to all foreign vessels the right of archipelagic sea lanes passage that has been overlooked by all these commentators on our baselines.

Right now, the waters among and between our islands belong to the Philippines . The moment you declare the Philippines as an archipelagic state, foreign vessels will have the right to pass in these waters between our islands without asking for our permission and the freedom to do whatever they want as long as they don’t get caught doing it.

My proposal is to convene a commission of experts. That is the problem with the Senate. This is a very highly technical subject, and everyone is just shooting his mouth off for a sound byte. You cannot do that with this very complicated legal issue.

The UN Convention on the Law of the Sea does not impose a compulsory duty for archipelagic states to draw their baselines because the convention states that “the State may draw”. It does not say “shall draw.” There is no penalty if you don’t declare your baselines.

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21 April 2008

“HISTORIC” JPEPA STARTS STORMY SENATE PATH

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, filed a committee report recommending conditional concurrence in the ratification of the Japan-Philippines Economic Partnership Agreement (Jpepa), and described it as “an improved treaty, because the condition requires compliance with at least 15 specified constitutional provisions.”

Santiago said that this will be the first time in Senate history that the Senate will extend “conditional” concurrence with a treaty ratified by the president, as contrasted with “simple” concurrence in the past.

“The Constitution has no provision either expressly allowing or disallowing a conditional concurrence. The rule in constitutional construction is that where the law does not distinguish, courts should not distinguish. The Constitution gives to the Senate the power of concurrence. Thus, it implicitly gives the power of conditional concurrence. This is the practice in the United States,” she said.

Santiago said the rule in Latin is: ubi lex non distinguit, nec nos distinguire debemos, and it has been applied repeatedly by the Philippine Supreme Court.

Santiago said the condition ensures that Jpepa will observe the constitutional provisions on: public health, protection of Filipino enterprises, ownership of public lands and use of natural resources, ownership of alienable public lands, ownership of private lands, reservation of certain areas of investment to Filipinos, and giving preference in the national economy and patrimony to Filipinos;

Regulation of foreign investments, operation of public utilities, preferential use of Filipino labor and materials, practice of professions, ownership of educational institutions, state regulation of transfer of technology, ownership of mass media, and ownership of advertising firms.

The condition imposed by the committee also makes reservations for future exceptions to at least three Jpepa articles dealing with national treatment, most-favored-nation treatment, and prohibition of performance requirements.

Santiago explained that the condition prohibits three clauses, as follows:

• A national treatment clause accords Japanese the same rights as those accorded to Filipinos;
  

• A most-favored-nation clause between the two states provides that each state will treat the other as well as any other state that is given preferential treatment;
  

• A performance requirement imposes certain conditions for investment activities in the Philippines, such as to achieve a given level of domestic content, give preference to goods or services produced in the Philippines, or to hire a given level on Filipinos.
  

Santiago said the condition is necessary to protect private ownership of land, sectors listed in the Foreign Negative Investment List, and the policy under the Labor Code of hiing Filipinos first.

“The basic issue with Jpepa was that the advantages were in favor of Japan, but not necessarily for the Philippines. Another issue was that Jpepa failed to include reservations that Japan has already conceded to Thailand, Malaysia, and Indonesia. We just want equal treatment,” Santiago said.

“It was a highly technical and exhausting makeover. But Sen. Roxas and I still face the Scylla and Charybdis of getting the majority vote of the two committees, and then getting 16 votes in the plenary session. And finally, foreign affairs Sec. Alberto Romulo has to negotiate a supplemental agreement with the Japanese ambassador,” Santiago said.

The senator said that the agreement might take the form of an exchange of notes, and shall emphasize the “common understanding” of the two countries that no investor of either country shall be entitled to any right or preference under the Jpepa, “unless such investment shall have been made in accordance with the requirements of the laws of the other country.”

Answering media questions, Santiago said that if Japan refuses to agree to a supplemental agreement, “there will be no 2008 Jpepa, but the two countries will likely negotiate a 2009 Jpepa or later.”

The senator said the conditions for concurrence “are an absolute necessity,” because otherwise the Supreme Court would declare the Jpepa unconstitutional.

“The Vienna Convention on the Law of Treaties provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Thus, if the Supreme Court declares Jpepa to be unconstitutional, in international law the Philippines would still be liable in damages to Japan for non-performance of treaty obligations,” Santiago said.

The Jpepa committee report is now being circulated for signature among senators who are members of the Senate foreign relations committee chaired by Santiago, and members of the committee on trade and industry headed by Roxas.

Under Senate rules, the committee report must be approved by a majority of its regular and ex officio members. Santiago said the process could take this whole week, hence she has rescheduled her sponsorship speech for Monday April 28.

Santiago is distributing to all senators the proposed Senate resolution of conditional concurrence, with Annexes A and B. She said that in addition, she will distribute the separate Full Committee Reports, with one volume written by herself, and another volume written by Roxas.

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