APPARENTLY, some politicians are extremely taboo with the word "negotiation", so much so there is an allegation that the current government seems to have acknowledged China’s claim on areas that are legitimately Malaysia’s territory when the word was used in Parliament by the prime minister.

It all started with the prime minister's parliamentary reply in which the prime minister was reported as saying that he had told China that Petronas’s exploration of an area — which is also claimed by China — is viewed by Malaysia to be Malaysian territory and that Petronas would continue its activity there.

In desperately trying to score some political points, the Opposition was quick to create unnecessary hoo-ha when the prime minister employed these words: "the government is open for negotiations if China feels that area is their right" while answering questions in Parliament.

Was [Tan Sri] Muhyidddin Yassin right in accusing the prime minister of committing a grave mistake in employing the phrase "open for negotiation" in that such remarks had the implication of indirectly acknowledging China’s claim on areas that are legitimately Malaysia’s territory and which Malaysia must defend?

Muhyiddin was firm in making a rather sweeping statement that the Petronas exploration area referred to by the prime minister is in Malaysia’s territory, hence it cannot be negotiated at all cost, even if the same is claimed by China.

While we may agree with Muhyiddin that the Petronas exploration area is within the Malaysia’s territorial waters, we are, however, unable to subscribe to his view that it is totally forbidden to embark on any form of negotiation with China.

With due respect, we are afraid that is not how international relations or international politics really work or function.

Ergo, we tend to agree with the statement issued by Wisma Putra when it clarified that by stating the term "negotiation" during the prime minister’s Question Time in Parliament on April 4, the prime minister was in fact trying to make the point that issues relating to the South China Sea should be discussed or resolved in a peaceful manner, utilising existing platforms and through diplomatic channels, and without compromising Malaysia’s principled position, to avoid any escalation of disputes, and the threat or use of force.

Let us now examine this issue from the perspective of international law. Is it legally erroneous for the prime minister to use the word "negotiation" in his parliamentary reply?

Let us begin with the basic. Negotiation is one of the approved methods under international law. By virtue of Article 33 of the United Nations (UN) Charter , negotiation is highly recommended to be resorted to by international players, as it is duly considered to be one of the best peaceful means in resolving any international dispute.

The 1982 Manila Declaration on the Peaceful Settlement of International Disputes ("Manila Declaration") has duly reaffirmed such a peaceful method i.e negotiation. In addition to that, negotiation is also recognised by Pact of Bogota or the American Treaty on Pacific Settlement which was signed by 21 states in 1948

It goes without saying that "negotiation" is a well known lingua franca in international politics.

Negotiation has nothing to do with any form of concession.Yes, both are poles apart.

Be that as it may, Muhyiddin was clearly in manifest error when he tried to drive home the point that the present government indirectly conceded China's claim on the South China Sea by agreeing to negotiate with China.

That seems to be an irresponsible conclusion and coming from a veteran politician like Muhyiddin, left much to be desired. His statement was akin to making a mountain out of a molehill.

After all, Prime Minister [Datuk Seri] Anwar [Ibrahim] had categoricallly told China that an exploration project by state energy firm Petronas in the South China Sea was within Malaysian waters.

It is common knowledge that China has been claiming sovereignty over the South China Sea.

But it has not been a unilateral claim by China alone. The issue of ownership of the South China Sea has been subject to multilateral claims. Several countries — including Malaysia — have been claiming sovereignty of it.

In fact, in July 2016, the Arbitral Tribunal in the South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China) issued a unanimous award favouring the Philippines.

Nevertheless, China flatly rejected the award on the ground, inter alia, that the Arbitral Tribunal, or Itlos (The International Tribunal for the Law of the Sea) has no jurisdiction in the case.

China maintained that her acceptance of dispute settlement under the UN Convention on the Law of the Sea (Unclos) — the basis put forward by the Philippines — was limited and excluded sea boundary delimitations and the determination of historic titles.

By agreeing to negotiate with China, it is submitted that the statement by the prime minister is in fact in line with the provisions of the Declaration on the Conduct of Parties in the South China Sea (DOC), including dispute resolution by peaceful means and avoidance of threat or use of force, as signed by Asean member states and China in 2002.

Finally, it is normal to have political dissonances on any issues. But, when it comes to the issue of political sovereignty, political maturity ought to be the rule of the game.

Mohamed Hanipa Maidin
(Malaysian politician)
10/4/2023.