DECEMBER 17 — The Agreement on Reciprocal Trade (ART) between Malaysia and the United States (US) has continued to receive strong criticism and condemnation from detractors who insist the agreement, among others, compromises Malaysia’s sovereignty.
Former prime minister Tun Dr Mahathir Mohamad has in recent days doubled down on his criticism of the agreement, even likening it to a new Malayan Union being forced upon the country.
Comparisons have been made between the ART between Malaysia and the US and the ART between Cambodia and the US, particularly Article 5.1 in both ARTs.
Article 5.1 in the ART between Malaysia and the US reads as follows:
If the United States imposes a customs duty, quota, prohibition, fee, charge, or other import restriction on a good or service of a third country and considers that such measure is relevant to protecting the economic or national security of the United States, the United States intends to notify such measure to Malaysia for the purpose of economic and national security alignment.
Upon receiving such notification from the United States, Malaysia shall adopt or maintain a measure with equivalent restrictive effect as the measure adopted by the United States or agree to a timeline for implementation that is acceptable to both Parties, to address a shared economic or national security concern, guided by principles of goodwill and a shared commitment to enhancing bilateral relations between the United States and Malaysia.
Article 5.1 in the ART between Cambodia and the US reads as follows:
When the United States imposes a customs duty, quota, prohibition, fee, charge, or other import restriction on a good or service of a third country pursuant to relevant domestic law, the United States intends to notify such measures to Cambodia for the purpose of economic security alignment.
Upon receiving such notification from the United States, Cambodia shall regulate the importation of that good or service into its territory through similar measures as those of the United States in a manner that does not infringe on Cambodia’s sovereign interests.
The words in emphasis above are absent in Article 5.1 in the ART between Malaysia and the US. Thus, the criticisms.
But as I wrote in Don’t read clauses in agreements in isolation one must not read clauses in an agreement in isolation.
There are back-end clauses in an agreement, which go by different names — conflict clauses, savings clauses, compatibility clauses — and which are included in the texts of an agreement.
One of the back-end clauses in the ART between Malaysia and the US is Article 7.1, on Recognition of Existing Rights and Obligations. It reads as follows:
The Parties recognise their rights and obligations under the WTO [World Trade Organisation] agreements, including provisions of those agreements that reflect a WTO member’s sovereign rights to protect essential security, address unfair trade practices, and pursue other public policy objectives.
Article 7.1 is simply this: The parties recognise their respective sovereign rights as members of the World Trade Organization (WTO).
There is no equivalent to Article 7.1 in the ART between Cambodia and the US.
So, what is absent in Article 5.1 of the ART between Malaysia and the US can be found in Article 7.1.
Let’s not allow the ART continue to be polarising.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
