PH-US nuclear energy agreement jibes with Constitution, laws – DOJ

The 2023 agreement on peaceful uses of nuclear energy between the Philippines and United States, known as the 123 Agreement, is aligned with the Constitution and laws of the Philippines, the Department of Justice (DOJ) said.

In a legal opinion dated April 1, 2024, DOJ Secretary Jesus Crispin C. Remulla said: “The provisions of the 123 Agreement are not in conflict with the aforementioned existing laws, as well as with the pending nuclear-related bills before Congress for which this Department has been involved, such as the proposed measures seeking to amend Republic Act No. 5207 on atomic energy regulation and nuclear civil liability.”

Remulla also said: "The 123 Agreement is consistent with the state policy against nuclear weapons under Article II, Section 8 of the 1987 Philippine Constitution that states that nuclear material, equipment, and components and those produced from it shall not be used for any nuclear explosive device, for research on or development of any nuclear explosive device, or for any military purpose.”

Assistant Secretary Jose Victor V. Chan-gonzaga of the Office of American Affairs of the Department of Foreign Affairs (DFA) sought the legal opinion on the 123 Agreement, also known as the Agreement for Cooperation between the Government of the Republic of the Philippines and the Government of the United States of America Concerning Peaceful Uses of Nuclear Energy, that was signed in the US on Nov. 16, 2023.

Gonzaga asked the DOJ, a member of the Nuclear Energy Program - Inter-agency Committee (NEP-IAC), if the 123 Agreement is covered under existing legislation like Republic Act (RA) No. 5207, the Atomic Energy Regulatory and Liability Act of 1968, as amended; RA 10697, the Strategic Trade Management Act of 2015; and RA 11479, the Anti-terrorism Act of 2020.

He also sought clarification if the 123 Agreement does not conflict with existing laws and related bills pending before Congress.

Remulla affirmed that the 123 Agreement is covered by RA 5207 as well as Executive Order No. 12, series of 187 which, he cited, “explicitly empowers the Philippine Nuclear Research Institute to license and regulate activities relative to production, transfer and utilization of nuclear and radioactive substances.”

Though RA 5207 may be old, Remulla said this has been “complemented by recent laws including but not limited to R.A. No. 10679 of 2015 for the strategic goods control, such as in their importation, exportation, transit, as well as transshipment, and R.A. No. 11479 of 2020 which, despite its silence on nuclear terrorism, punishes acts of terrorism in general.”

The DOJ chief also pointed out that the 123 Agreement explicitly states that the safe and secure use of nuclear energy for peaceful purposes “shall be in accordance with the provisions of this Agreement and their applicable international agreements, national laws. and regulations” and that the “Agreement does not require the transfer of any information that the Parties are not permitted to transfer under their respective international agreements, national laws, and regulations.”

“Considering the foregoing, it is clear that this bilateral accord does not preclude the application of the national laws of the parties, especially of the Philippines, but rather gives way to their enforcement instead,” he said.