MA63 - VOID AB INITIO by Robert Pei, SSRANZ President.
ICJ CHAGOS CASE DECISION VINDICATES ASSERTION THAT MA63 WAS VOID AB INITIO
The United Kingdom has accepted the ICJ’s 2019 advisory opinion (decision) and UN General Assembly Resolution A/RES/73/295, which directed it to decolonise and return the Chagos Islands to Mauritius. On 22 May 2019, the UN General Assembly endorsed the ICJ's advisory opinion, calling on the UK to end its administration of the British Indian Ocean Territory (BIOT), which includes the Chagos Archipelago, within six months. In October 2024, the British government announced its intention to transfer sovereignty over the Chagos Islands to Mauritius, subject to the finalisation of a treaty. However, rather than an outright handover, the UK has negotiated a 99-year lease agreement with Mauritius at £90 million per year.
The ICJ’s Chagos decision was later reaffirmed in Mauritius v. Maldives (2021) and by the International Tribunal for the Law of the Sea (ITLOS) on 28 April 2023. After four years of resisting compliance with the UN resolution, the UK finally made the decision to return the Chagos Islands to Mauritius. Source: ITLOS Decision on Mauritius v. Maldives
Implications for MA63
The Chagos Case decision supports the assertion made by SSRANZ President Robert Pei in 2013, that the Malaysia Agreement 1963 (MA63) was void ab initio. He argued that North Borneo (Sabah) and Sarawak were still British colonies on 9 July 1963, when MA63 was signed, and therefore lacked the legal capacity to enter into a binding international agreement.
Despite this, Malaysian authorities, academics, and legal professionals have largely avoided scrutinising the validity of MA63, as doing so would raise a fundamental issue: if MA63 were invalid, Malaysia was “formed” without a legal basis. This would imply that Malaya has been exercising de facto control over Sabah and Sarawak without their freely given consent since 1963.
Misinterpretation of the Chagos Case
Some proponents of Malaysia’s legitimacy attempt to distinguish the Chagos Case from MA63 by arguing that the former concerned territorial separation, while MA63 involved territorial unification.
However, this is a misreading of the case’s core legal principles.
The Chagos decision was not merely about territorial division but rather about the principles of self-determination and treaty-making under international law.
Both the Chagos Case and MA63 share a critical legal issue: the unlawful transfer of sovereignty without the free and informed consent of the affected people, in breach of international law.
Key Legal Principles Reaffirmed by the ICJ in the Chagos Case. The ICJ reaffirmed fundamental legal principles regarding self-determination and treaty-making :
1. Right to Self-Determination
◦ UNGA Resolution 1514 grants all peoples the legal right to determine their own destiny free from external interference.
2. Colonial Powers Cannot Make Binding Treaties with Their Colonies
◦ The ICJ ruled that as a crown colony under UK control, Mauritius lacked the legal capacity to enter into an agreement transferring sovereignty to the UK.
◦ International treaties must be signed between independent states, meaning a colony cannot validly sign a binding international agreement.
3. Failure to Obtain Proper Consent
◦ The UK failed to hold a referendum, as required by UNGA Resolution 1541, to confirm whether the people of Chagos consented to separation from Mauritius.
4. Coercion Invalidates a Treaty
◦ The ICJ found that the Mauritian government was coerced into agreeing to the transfer, rendering the agreement invalid under international law.
Parallels with MA63: Lack of Legal Capacity and Coercion
Like Mauritius, North Borneo and Sarawak were crown colonies under direct British rule from 1946 to 16 September 1963. Although Singapore received "internal self-rule" in 1959, it remained a British colony without sovereignty.
Pro-Malaysia advocates argue that the UK had the authority to make treaties on behalf of its colonies. However, this argument ignores a fundamental shift in international law:
• UNGA Resolutions 1514 and 1541 override any colonial authority to make treaties for their territories.
• These resolutions, part of the UN Decolonization Declaration (1960), mandate that colonial powers must allow their colonies to freely determine their future without coercion.
Under the Colonial Laws Validity Act 1865, British colonies had no independent legal authority. This was reaffirmed by the Statute of Westminster 1931, which granted treaty-making powers only to British Dominions (Australia, New Zealand, Newfoundland), explicitly excluding crown colonies.
Thus, North Borneo and Sarawak lacked the legal capacity to be parties to MA63, a view also supported by P.E.H. Pike, Sarawak’s Colonial Attorney General, who helped draft MA63.
British Legal Position on Colonial Treaties
Professor Anthony Aust, a long-serving British Foreign Affairs legal adviser, reinforces this point in his book Modern Treaty Law and Practice (2013, p.70, Cambridge Press):
“As between a parent state and one of its territories, or between its overseas territories, there can be no international relations, since only the parent is sovereign; and any agreement between them will not be legally binding in law. When there is need for an agreement, it may be convenient — and will avoid any mistaken implication that it is legally binding — to draft it as if it were an MOU or ‘administrative agreement’.”
This aligns with the British legal drafters’ initial discussions on MA63, where Singapore, North Borneo, and Sarawak were originally not intended to be included as parties to the agreement.
The Case for MA63’s Invalidity
The Malaysia Agreement 1963 was void from the outset because:
1. Lack of Legal Capacity
◦ North Borneo, Sarawak, and Singapore were British colonies with no independent sovereignty in 1963, making them ineligible to enter into a binding international treaty.
2. Absence of Free and Informed Consent
◦ The UK and Malaya failed to hold a referendum in compliance with UNGA Resolution 1541 to confirm the people’s consent.
◦ The UK instead pressured North Borneo and Sarawak into joining Malaysia under emergency conditions and political coercion.
3. Unlawful External Interference
◦ UNGA Resolution 1514 explicitly forbids colonial powers from interfering in the self-determination of their colonies.
◦ The UK-Malayan "Malaysia Plan" interfered with the Borneo territories’ ability to freely determine their future, violating international law.
The Chagos Case confirms that the transfer of sovereignty from the UK to Malaya under MA63 was unlawful, as it lacked legal capacity, proper consent, and was carried out under coercion. The UK’s failure to properly decolonise North Borneo and Sarawak means that their incorporation into Malaysia did not comply with international law.
Malaysia was not formed through a legally valid agreement, but rather through a forced political arrangement that disregarded the right to self-determination.
Source: Mr.Robert Pei, President of SSRANZ