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STATEMENT BY

MS. HANIZAH MOHD IZZUDDIN

COUNSELLOR

PERMANENT MISSION OF MALAYSIA TO THE UNITED NATIONS

 

ON AGENDA ITEM 82:

REPORT OF THE INTERNATIONAL LAW COMMISSION

ON THE WORK OF ITS SEVENTY-SECOND SESSION

 

CLUSTER III – CHAPTERS VII (SUCCESSION OF STATES IN RESPECT OF
STATE RESPONSIBILITY) AND VIII (GENERAL PRINCIPLES OF LAW)

 

AT THE SIXTH COMMITTEE OF

THE 76TH SESSION OF THE GENERAL ASSEMBLY

 

NEW YORK, 3 NOVEMBER 2021

 

 

Madam Chair,

SUCCESSION OF STATES IN RESPECT OF STATE RESPONSIBILITY

 

At the outset, Malaysia records its appreciation and gratitude to Mr. Pavel Šturma, the Special Rapporteur, for the comprehensive fourth report on the topic Succession on States in Respect of State Responsibility.

2.         Malaysia commends the effort of the Special Rapporteur in providing a detailed and meticulous analysis of the proposed draft articles in the fourth report, namely draft articles 7 bis, 16, 17, 18 and 19, which deal with issues on forms of reparation (restitution, compensation and satisfaction) in situations of succession of States as well as the examination of the possible impact of succession of States on other obligations arising from internationally wrongful acts.

 

Madam Chair,

3.         Malaysia welcomes the first conclusion made in the fourth report of the Special Rapporteur regarding the priority of agreements between the States concerned whereby the draft articles are subsidiary in nature to the said agreements.

4.         On this note, the suggestion of including examples of succession agreements between States as well as a number of model clauses, which could be used as a basis for negotiation of succession agreements in respect of State responsibility, into the commentaries to the draft articles could be proven useful and therefore, ought to be given due consideration.

5.         Malaysia also expresses its gratitude for the second conclusion made in the fourth report of the Special Rapporteur that the present topic must be consistent in terminology and substance with the previous works of the Commission. Specifically, Malaysia agrees that the topic should be consistent with the articles on Responsibility of States for Internationally Wrongful Acts 2001 that are largely considered as reflecting customary international law.

 

Madam Chair,

6.         Malaysia observes that the Special Rapporteur has stated in the fourth report that there is a difference between “transfer of responsibility” of States and “transfer of rights and obligations arising from responsibility” of States. However, there is no further clarification or explanation given on the said difference. Malaysia is of the view that the said difference could be further clarified and explained by the Special Rapporteur in order to avoid any ambiguities and confusions.

7.         In relation to draft article 7 bis, Malaysia agrees that the provision on composite acts should be placed next to draft article 7 which had been provisionally adopted in 2019 by the Drafting Committee. Malaysia further considers it useful to complement draft article 7 by differentiating composite acts from continuing acts. However, further clarification should be given on the scope of paragraphs 1 and 2 of the said draft article, particularly the responsibility of the predecessor State when it continued to exist. Malaysia recommends that the draft article 7 bis be considered when discussing on the issue of shared responsibility between the Predecessor State and Successor State, which has yet to be addressed by the Special Rapporteur. 

 

Madam Chair,

8.         In respect of draft article 16 which provides for a form of reparation i.e. restitution, Malaysia wishes to highlight that draft article 16(1) seems to be inconsistent with article 35(b) of the Articles on Responsibility of States for Internationally Wrongful Acts 2001, especially on the omission of the phrase “to the benefit deriving from restitution instead of compensation” in article 35(b) in paragraph 1 of draft article 16. As such, for the purpose of maintaining clarity and consistency with article 35(b), Malaysia recommends for this omission to be clarified further by the Special Rapporteur.

9.         Concerning draft article 17 which provides for compensation, Malaysia is of the view that this draft article is generally acceptable. However, Malaysia believes that in order to truly give effect to the general principle of prohibition of unjust enrichment as envisaged by the Special Rapporteur, further clarification in the form of commentary may be made to draft article 17 on the methods for valuation of compensation.

 

Madam Chair,

10.       With regard to draft article 18, Malaysia observes that this provision is intended to provide for satisfaction as a form of reparation if such injury cannot be made good by restitution or compensation. As draft article 18 lays down an obligation on the part of the predecessor State to give satisfaction, Malaysia is of the view that it would be of great assistance if clarification can be made as to the form of satisfaction required to be given by the predecessor States. In this regard, Malaysia proposes for reference to be made to article 37 of the Articles on Responsibility of States for Internationally Wrongful Acts 2001.

11.       As for draft article 19, this article provides for assurances and guarantees of non-repetition. Although Malaysia could support the inclusion of this provision, which is distinct from other forms of reparation, Malaysia would like to highlight that the word “appropriate” used in subparagraphs 2(a) and (b) of article 19 is vague and subjective in nature. Based on this word, an issue may arise as to which party will decide the appropriate form of assurance and guarantee of non-repetition. In addition, should there be divergent views on the appropriateness of the action, which party or forum would be able provide finality on the issue. Therefore, Malaysia recommends for this uncertainty to be clarified further by the Special Rapporteur by providing examples of assurance and guarantees of non-repetition to make it clearer and more precise.

12.       Apart from the specific comments on articles 17 to 19, Malaysia notes that based on the insertion of the words “may request” in draft articles 16(2) and (4), draft articles 17(2) and (4), and draft article 19(2), an injured State may request restitution, compensation, or assurances and guarantees of non-repetition from a requested State respectively. However, it is not clear from these draft articles whether the requested State is legally obliged to provide restitution, compensation, or assurances and guarantees of non-repetition to the injured State. Hence, Malaysia recommends for this ambiguity to be explained further by the Special Rapporteur.

 

Madam Chair,

13.       Finally, Malaysia welcomes the future programme of work proposed by the Special Rapporteur. Furthermore, in line with the Special Rapporteur’s readiness to take into account geographically diverse State practice, Malaysia wishes to reiterate its views that the Commission and Special Rapporteur should engage in consultations with more States on this topic and take into consideration more diverse sources of State practices such as from the Asian and African regions, and not only from European sources to ensure the progressive development of international law relating to succession of States in respect of responsibility in the future.

 

Madam Chair,

GENERAL PRINCIPLES OF LAW

14.       Turning now to the topic “General principles of law”, Malaysia acknowledges and appreciates the efforts undertaken by the Commission and the Special Rapporteur, Mr. Marcelo Vázquez-Bermúdez, particularly his second report (A/CN.4/741 and Corr. 1) that was presented at the seventy-second session of the Commission. Malaysia notes that the Commission had decided to refer draft conclusions 4, 5, 6, 7, 8 and 9 to the Drafting Committee, and provisionally adopted draft conclusions 1, 2 and 4 together with commentaries. It is further noted that the Commission took note of draft conclusion 5, as contained in the report of the Drafting Committee.

15.       Malaysia wishes to reiterate its view that the inclusion of this topic in the Commission’s long-term programme of work is crucial in the progressive development of international law and will carry substantive effect as one of the sources of international law. Accordingly, detailed analysis by Member States in arriving at a position acceptable at the international level is a prerequisite. It is with this in mind that Malaysia would like to express its views and concerns on the draft conclusions that have been provisionally adopted by the Commission.

 

Draft Conclusion 1: Scope

16.       Malaysia views that the draft conclusion 1 generally reaffirms a well-established principle that has existed even before its codification – general principle of law as a source of international law. Noting the grey areas subsisting in this ‘source’ of law, development of conclusions in the future work of the Commission on the scope, the method for their identification, and their functions and relationship with other sources of international law would provide clarity in their application. Malaysia, therefore, supports the Commission’s work in this regard with the hope that the conclusions would be useful guides to assist States, international organisations, courts and tribunals, and others called upon to deal with general principles of law as a source of international law.

 

Draft Conclusion 2: Recognition

17.       Malaysia observes that there are two (2) important elements or conditions under the draft conclusion 2, namely, recognition and community of nations. On recognition, for a general principle of law to exist, it must be agreed as true or legal, or formally acknowledged. In the sense of Article 38(1)(c) of the Statute of the International Court of Justice, the agreement or formal acknowledgement must be proven by all the available evidence that showing the general principle of law has been ‘recognised by civilized nations’.

18.       It is noted that ‘community of nations’ is employed instead of ‘civilised nations’, a term that can be considered as obsolete when referring to whose recognition is required for a general principle of law to exist. Hence, for a general principle of law to exist, it must be generally recognised by the members of the community of nations. Malaysia acknowledges that the term ‘community’ is widely used in various international treaties such as the Universal Declaration of Human Rights. The concept of ‘community’ is also an integral element of the Association of Southeast Asian Nations (ASEAN).

19.       To Malaysia, the draft conclusion 2 is generally consistent with Article 1(2) and Article 2(1) of the UN Charter, as well as various international treaties, which provides the basic foundation of the principle of sovereign equality of States.

20.       Nonetheless, Malaysia has reservations on paragraph 5 of the commentary relating to the role of international organisations in the formation of general principles of law, as international organisations do not, in any way, have the same equal standing, structural character, obligations as well as responsibilities with that of sovereign States. Unlike States, international organisations are established for specific functions which characterise their restricted mandates and activities. In this regard, Malaysia looks forward to having these issues be comprehensively analysed, deliberated and considered for the purpose of inclusion in the Special Rapporteur's future report.

 

Draft Conclusion 4: Identification of general principles of law derived from national legal systems

21.       Malaysia further observes that the draft conclusion 4 is the first of the two (2) categories of general principles of law, which concerns identification of general principles of law derived from national legal systems. Malaysia shares the view that in deciding which national legal systems to be examined through the comparative analysis, criteria such as variety and diversity must be considered to ensure wide and most represented analysis of the legal systems of the world is undertaken. Malaysia highly commends the consideration given to various legal systems of the world particularly the Islamic legal system and that of the Asian region as mentioned in the second report of the Special Rapporteur.

22.       Similarly, on the issue of the materials to be used for the comparative analysis, Malaysia viewed the States’ practice in this regard seems to consider unique and distinctive characteristics that may be present in the national legal systems of the world. In Malaysia’s view, with this approach, the identification of a principle of law could attain extensive and diverse coverage as intended.

23.       Malaysia also notes the other condition which is the transposability of a principle common to the principal legal systems of the world to the international legal system. Reference to paragraph 4 of the provisionally adopted commentary found that the Special Rapporteur intends to explore and clarify further on the second condition for the identification of general principles of law falling under the first category.

24.       Malaysia wishes to draw the attention of the Sixth Committee to the fact that States only have the benefit of studying the draft conclusion within the context of what has now been provided by the Commission. It is in Malaysia’s view that the entire draft conclusion should be read in its entirety to ensure that all concerns have been addressed as a whole since they are interrelated to one another. For this reason, Malaysia would like to reserve the right to make further statements on all the draft conclusions once the entire draft is completed.

25.       To conclude, Malaysia recapitulates the importance of this topic and is also cognisant of its complexity. Therefore, Malaysia remains committed to further engaging in the development of this topic in a supportive and constructive manner.

 

Thank you.