WHY MA63 WAS VOID AB INITIO?

VALIDITY OF TREATIES

ESSENTIAL REQUIREMENTS OF INTERNATIONAL LAW

A treaty is null & void from the beginning if its fails to comply with established legal requirements (codified by the Vienna Convention on Law of Treaties 1969):

Contracting parties must have legal capacity to enter into an international agreement or treaty.

Consent must be properly given to agreement.

Object of agreement must be permissible

THE LEGAL CAPACITY RULE: International law recognises that only independent sovereign states (& certain international organisations) have capacity to enter into binding international agreements or treaties (affirmed by ICJ in Chagos Case 2019). The UK creation of the Malaysia Agreement 1963 was flawed by it failure to comply with all the basic rules for making valid treaties.

This principle of capacity greatly concerned the British colonial administrative officials of North Borneo (Sabah) & Sarawak in the making of the Malaysia Agreement 1963 (MA63). This was because they knew that the 2 colonies  (& Singapore) were not independent states and did not have capacity or competence to enter into the Agreement with the UK and Malaya in 1963.

The colonial Attorney-General of Sarawak Mr. PEH Pike wrote before MA63 that neither North Borneo nor Sarawak could be parties to MA63 and should be excluded from the agreement. However, he said for “presentational” reason, they should be included. Thus the UK knowingly breached international law to create a illegal treaty.

Consent was not properly given by the 2 colonies as there was no proper compliance with the people’s wishes and mandate freely given in a referendum to enter into MA63 UN GAR1541 XV). This was underlined by the fact that the respective colonial Attorney Generals also signed the treaty.

The UK and Malaya had wrongfully imposed an agreement on the people with the object to transfer their sovereignty to Malaya in breach of UN rules (UN GAR 1514 XV) against foreign interference in their independence process and had prior to MA63 secretly colluded to deny the colonies independence by agreeing to set up Malaysia.

Source: Conan Drum