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STATEMENT BY

MS. FARAH NURUL AYU IZANY

REPRESENTATIVE OF MALAYSIA TO THE SIXTH COMMITTEE OF THE

80^TH SESSION OF THE UNITED NATIONS GENERAL ASSEMBLY

 

ON AGENDA ITEM 80:

REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK OF ITS SEVENTY-SIXTH SESSION

 

 CLUSTER II - CHPS: V (IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION), VII (SUBSIDIARY MEANS FOR THE DETERMINATION OF RULES OF INTERNATIONAL LAW), VIII (SETTLEMENT OF DISPUTES TO WHICH INTERNATIONAL ORGANIZATIONS ARE PARTIES), IX (NON-LEGALLY BINDING INTERNATIONAL AGREEMENTS), X (PREVENTION AND REPRESSION OF PIRACY AND ARMED ROBBERY AT SEA), AND XI (SUCCESSION OF STATES IN RESPECT OF STATE RESPONSIBILITY)

 

 

Mr. Chair,

 

CHAPTER V- IMMUNITY OF STATE OFFICIALS FROM FOREIGN CRIMINAL JURISDICTION

 

1.         Malaysia expresses its appreciation to the International Law Commission (“Commission”) for its continued work on this important topic.

 

2.         Malaysia commends the work accomplished by the Commission whereby draft articles 1 to 6 have been provisionally adopted. In light of the request by the Commission for Governments to submit comments and observations on draft articles 7 to 18 and the draft annex of this topic, we wish to share our comments and observations on these draft articles through the proceeding key issues.

 

First Issue: Crimes under international law in respect of which immunity ratione materiae shall not apply - issues of application of International Treaties to non-State parties.

 

3.         Malaysia notes that there are proposals to have a more non-exhaustive list in terms of the listing of crimes. Malaysia also notes the new insertion of crimes in the list such as crimes of aggression, slavery and the slave trade. For this, Malaysia views that any introduction of crimes in the list requires careful consideration and deliberation as these crimes are mostly defined according to their respective treaties.  Definitions such as genocide, war crimes, crimes against humanity, crime of aggression are enumerated in the Rome Statute of the International Criminal Court, in which not all AALCO Member States are signatories. The same applies to the International Convention on the Suppression and Punishment of the Crime of Apartheid, the International Convention for the Protection of All Persons from Enforced Disappearance  and the 1926 International Convention to Suppress the Slave Trade and Slavery. Thus, to circumvent the situation where a State is inadvertently subjected to a definition of a crime defined under a convention that it is not a party to, the Commission is recommended to provide for the definition of the crimes listed in paragraph without cross referring to the respective conventions or treaties.

 

Second Issue: Application of the procedural aspect and safeguards of the draft articles in light of the significant distinction between the two types of immunity namely immunity ratione personae and immunity ratione materiae

 

4. Malaysia observes that no distinction was made to the procedure of invoking the two different types of immunity by the State of the official, particularly on draft articles 9,11 and 14. Therefore the Commission should provide clear and coherent explanation on the application of the procedural provisions vis-à-vis the two types of immunity namely immunity ratione personae and immunity ratione materiae.

 

Third Issue: Application of draft article 13 (request for information) in relation to the immunity of State officials from foreign criminal jurisdiction

 

5.Malaysia notes that the nature of the request under article 13 is non-binding in nature, and notably the mechanisms to be in non-mandatory manner. For purposes of consistency, the Commission is recommended to state the time period and the duty of States on the notification and invocation upon such request in the commentary. Thus, the interaction between the States signifies the application of article 13 and the proposal for these matters to be spelled out in the commentary can be given due consideration.

 

6. In relation to the proposed removal of references to mutual legal assistance treaties in paragraph 3, Malaysia holds the view that mutual legal assistance treaties and mechanisms are designed for evidence-gathering in criminal investigations or prosecutions. It is observed that inherent function of mutual legal assistance treaties is for collecting evidence and the mechanism employed often require disclosure to courts. Hence, the proposed removal of references to mutual legal assistance treaties in paragraph 3 can be given due consideration as it is not meant to be employed for clarifying the status of immunity.

 

7. Malaysia reiterates its proposal to incorporate elements of confidentiality as a starting point for the examination of any request for information, taking into consideration the potential sensitivities of information that may be requested and/or exchanged between States on the application or invocation of immunity. Apart from that, Malaysia observes that the draft article itself is silent on the part of the requested State to assess whether preconditions or measures to be taken while “considering in good faith” for a request of such information from the forum State.

 

 

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Draft articles 10–12: Notification to the State of the Official, Invocation of Immunity and Waiver of Immunity

 

8. Malaysia supports the amendment to draft article 10, which permits notification to be withheld where disclosure would compromise the confidentiality of an investigation or the proper conduct of proceedings. This amendment achieves a fair balance between respect for State sovereignty and the need to preserve the integrity of criminal justice. Without such flexibility, mandatory notification risks obstruction of proceedings, destruction of evidence or intimidation of witnesses.

 

9. On draft article 11, Malaysia views that immunity should not be left for the forum State to recognise proprio motu but must be formally invoked in limine litis. Formal invocation provides clarity, avoids legal uncertainty and sends an unambiguous message that the acts of the official are those of the State, not of a private individual.

 

10. Regarding draft article 12, Malaysia’s position is that waiver of immunity must be express, in writing and irrevocable once granted. Invalidity may be recognized only in exceptional circumstances such as coercion, fraud, or error but this must not be confused with revocation. Such a strict written and irrevocable waiver strengthens reciprocity, enhances legal certainty and reinforces confidence in the international legal order.

 

Draft articles 16–18: Fair Treatment of the State Official, Consultation and Settlement of Disputes

 

11. Malaysia supports draft article 16, which enshrines fundamental guarantees of fair treatment, due process, and the full protection of the rights of foreign officials. These safeguards are indispensable to the integrity of any legal system and resonate with the shared commitments of the international community under international human rights and international humanitarian law.

 

12. Malaysia also supports draft article 17. The emphasis on consultations in cases of doubt or conflict concerning the application of immunity embodies a spirit of cooperation and mutual respect among States. It also reflects established diplomatic practice and provides a constructive mechanism to prevent disputes from escalating, thereby contributing to stability in international relations.

 

13. In this regard, Malaysia look forward to having a productive discussion on this topic and will continue to voice our support to that end.

 

CHAPTER VII - SUBSIDIARY MEANS FOR THE DETERMINATION OF RULES OF INTERNATIONAL LAW

 

14. Malaysia records its appreciation to the Special Rapporteur Mr. Charles C. Jalloh for preparing the Third Report on “Subsidiary means for the determination of rules of international law” (A/CN.4/781) as well as to the International Law Commission (“ILC”) for the persistent determination and effort in the work on this topic.

 

15. In this regard, Malaysia notes as to date, draft conclusions 1 to 8 together with its commentaries were provisionally adopted by the ILC. Malaysia further notes that ILC took note of the report of the Drafting Committee containing draft conclusions 1 to 13 that were provisionally adopted by the Drafting Committee on first reading.  Accordingly, Malaysia would like to express its views and concerns on the draft conclusions 9 to 13 as proposed by the Special Rapporteur contained in the third report.

 

Draft conclusion 9: Outputs of private expert groups

 

16. Malaysia notes that draft conclusion 9 appears to be an elaboration of the open-ended category created in the provisionally adopted draft conclusion 2(c), namely “any other means generally used to assist in determining rules of international law”. Malaysia reiterates our previous concern regarding the potentially vast and undefined scope of this third category, which is qualified only by the term “generally used”. The precise threshold for what constitutes being “generally used” remains ambiguous.

 

17. Further, in Malaysia’s view, the terms in paragraph 1 “outputs” and “collective of individuals, organised independently” are overly broad and lack clear definitions. The commentary should elaborate on a clearer threshold for an output to qualify as subsidiary means, as well as on how independence is to be ascertained to avoid giving weight to outputs from bodies that may be influenced by particular national, regional, or special interests.

 

18. On another note, Malaysia supports paragraph 2 which subjects these outputs to assessment criteria in the previously adopted draft conclusion 3. Nonetheless, Malaysia views that applying these criteria to private expert groups may present some challenges. For instance, degree of representativeness. Unlike the ILC itself, private expert groups are often self-selecting. Their composition may not be diverse, potentially leading to outputs that do not reflect a global consensus. For their outputs to be a credible subsidiary means, it is imperative that their work and composition reflect a global and inclusive perspective.

 

19. Nevertheless, Malaysia is supportive of the ILC’s objective to provide clarity on the role of outputs from private expert groups. However, Malaysia believes further work is required on the final text and its commentary to address the concerns above.

 

Draft conclusion 10: Pronouncement of public expert bodies

 

20. Concerning the proposed draft conclusion 10, Malaysia wishes to highlight that cautious support may be expressed to include pronouncements of public expert bodies as subsidiary means, provided that such pronouncements are non-binding in nature is clearly emphasized and that they only serve as assistance in the identification of rules of international law and not as independent sources.

 

21. The proposed “without prejudice” clause is welcomed as a necessary safeguard, but it could be further strengthened to ensure there is no implication that expert bodies can create customary international law.

 

22. Ultimately, these pronouncements are not sources of law on their own, but they can be used as supporting or supplementary material (subsidiary means) when determining what the rules of international law are, for example, when interpreting treaties or assessing customary international law. In this regard, Malaysia therefore reserves its position on any future proposal that might accord such pronouncements beyond their accepted role as subsidiary means under Article 38(1) of the ICJ Statute.

 

Draft conclusion 11: Resolutions of international organizations and intergovernmental conferences

 

23. Malaysia notes that during the first reading of the draft conclusion 11 at the ILC debate, ILC had reiterated the view that subsidiary means were not a source of international law but only used for the determination of the existence and content of rules of international law. It follows that some members view that resolutions of international organizations and intergovernmental conferences might serve both as evidence of State practice and subsidiary means, with the characterisation as subsidiary means might risk diminishing their weight or legal status in other contexts, especially regarding the formation of customary international law. In light of the concerns raised, Malaysia takes note that the Drafting Committee has revised the text of the draft conclusion 11.

 

24.  Malaysia notes that the inclusion of the term “may serve” in the draft conclusion 11 would provide flexibility on whether resolutions of international organizations and intergovernmental conferences are to be used as a subsidiary means for the determination of international law.

 

25. Malaysia observes that the formulation of the text of paragraph 1 of draft conclusion 11 which states “for the determination of the existence and content of rules of international law” differs from paragraph 3 of the same draft conclusion which states “for the determination of rules of international law”. As such, Malaysia seeks clarification on the reasoning to such differentiation in the formulation. Further, the formulation in paragraph 1 of this draft conclusion is also a deviation from the original formulation of Article 38(1)(d) of the ICJ Statute, in which this agenda item takes its origin.

 

Draft conclusion 12: Coherence in decisions of courts and tribunals

 

26. Malaysia notes that the draft conclusion 12 aims to address the instability in international law caused by conflicting interpretations of the same legal issue by different courts and tribunals. By promoting greater coherence, it seeks to strengthen the consistency and reliability of judicial outcomes across the international legal system.

 

27. With regard to paragraph 1, Malaysia recommends that the commentary be further developed to clarify the scope, mechanisms, and evaluative criteria that may foster consistency, stability, and predictability in their decision-making processes. Malaysia also notes the terms “consistency,” “stability,” and “predictability” are central to the draft conclusion, yet their operational meaning remains undefined. In this regard, Malaysia suggests that the commentary explore how these concepts are understood in judicial practice.

 

28. In addition, the phrase “within the limits of their mandate” raises important questions about how courts balance institutional independence with coherence. Malaysia recommends that further analysis of how different courts and tribunals interpret their mandates concerning broader legal harmonisation efforts.

 

Draft conclusion 13: Relationship between subsidiary means and supplementary means of interpretation

 

29. Malaysia notes that Draft Conclusion 13 addressing the relationship between subsidiary means for the determination of rules of law and supplementary means of interpretation under article 32 of the Vienna Convention on the Law of Treaties.

 

30.  In this regard, Malaysia observes that draft conclusion 13 may overlap with draft conclusion 6 since both reflect the role of subsidiary means in determining of the existence and content of rules of international law including to interpreting the treaty. Malaysia is of the view the matter was sufficiently covered in the draft conclusion 6 on the nature and function of subsidiary means.

 

31. In conclusion, Malaysia acknowledges the importance of this area of study and Malaysia remains committed to further engaging in the development of this topic in a supportive and constructive manner. 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.

 

CHAPTER IX – NON-LEGALLY BINDING INTERNATIONAL AGREEMENTS

 

Mr Chair,

 

32. Malaysia congratulates Mr. Mathias Forteau, the Special Rapporteur and commends his diligent efforts in preparing the Second Report on the topic “Non-Legally Binding International Agreements”.

 

33. In the First Report, the Special Rapporteur provided an in-depth examination of the origins of the topic, past work conducted by the Commission and relevant contributions from other international entities. Additionally, the First Report was aimed at defining the scope of the topic, outline key issues for consideration and suggest possible outcomes for the Commission’s work.

 

34. Notably, the Second Report further examines the subject matter of the topic, terminology to be used, the scope of the topic and addresses the first substantive issue, namely the distinction between treaties and non-legally binding international agreements.

 

35. Against this backdrop, Malaysia had the honour of submitting its comments during the 75^th Session and we note with appreciation that several of Malaysia’s comments have been thoughtfully reflected in the Second Report, which had also been duly considered by the Special Rapporteur in the formulation of the proposed draft Conclusions.

 

36. Malaysia appreciates the opportunity to present its views on the Second Report, as well as on the ensuing debate among members of the Commission issues raised by the Special Rapporteur.

 

37. During the Sixth Committee Meeting of the 79^th session of the United Nations General Assembly in 2024, Malaysia submitted that the final outcome of the work on non-legally binding international agreements should not include prescriptive recommendations, as it may undermine the flexibility and informality that render these instruments a valuable diplomatic tool. Nineteen (19) expressed a similar view and supported the adoption of draft Conclusions as the preferred form of the outcome. In this context, the Second Report of the Special Rapporteur proposes six (6) draft Conclusions for the consideration of Member States.

 

38. As to the possible approach to determine whether an international agreement is legally binding or not, Malaysia is of the view that it would depend on the intention of the parties, the objective elements and a combination of both, using objective indicators to determine parties’ intent.

 

39. The Special Rapporteur’s Second Report examines various potential indicators to determine the nature of international agreements, including —

 

(a) terms used;

(b) form and title;

(c) types of clause;

(d) authorities having negotiated or adopted the agreement;

(e) circumstances in which the text was drawn up and adopted;

(f)mode of adoption;

(g) registration, publication (at the international level);

(h) domestic procedure; and

(i) subsequent practice.

 

40. Regarding the terms used, Malaysia believes that specific language provides clear clues to understand the intent of the agreements and helps distinguish between binding and non-binding commitments.

 

41. The Second Rapporteur further states that form and title are not significant indicators, which aligns with Malaysia’s position expressed during the Sixth Committee Meeting of the 79^th session of the UN General Assembly.

 

42. Types of clauses, particularly final clauses, can be a relevant indicator. Malaysia agrees with the Special Rapporteur’s observations that there is little jurisprudence on how to approach different clause types, so further study would be helpful.

 

43. For the indicators “authorities having negotiated or adopted the agreement” and “domestic procedures”, Malaysia exercises careful consideration. As mentioned in Malaysia’s earlier Intervention, Malaysia’s Federal Constitution requires a streamlined executive process to approve all international agreements, whether legally binding or not.

 

44. Pertaining the “circumstances in which the text was drawn up and adopted”, Malaysia welcomes further clarification and examples from the Special Rapporteur to better understand its significance.

 

45. Concerning the “mode of adoption”, Malaysia agrees that ratification typically applies to legally binding international agreements. However, the absence of ratification should not undermine the legally binding status of international agreements which Malaysia is a Party to. Similarly, for “registration and publication”, while these often apply to legally binding treaties (especially those registered with the UN Treaty Depository), lack of registration and publication should not affect an agreement’s binding nature.

 

46. Regarding the “Subsequent practice”, Malaysia views this as a potentially useful indicator. However, it should be applied cautiously, since Malaysia consistently honours its commitments in good faith, treating both legally binding and non-legally binding agreements with equal respect.

 

47. At this Stage, Malaysia notes that discussions on this topic are still in the early stages. We understand that the Special Rapporteur is still working on key issues, including the best terminology to use and providing more examples to clarify the proposed indicators.

 

48. Therefore, Malaysia believes that the draft Conclusions should be considered only once they are fully finalized. This will give Member States a clearer and more complete picture to share their views on the topic. Malaysia reserves the right to provide further comments once the draft Conclusions are complete.

 

49. In conclusion, Malaysia looks forward to the Third Report, which is expected to explore the indicators for distinguishing between treaties and non-legally binding international agreements, as well as the legal effects that may result from the latter.

 

50. We again thank the Special Rapporteur and the Commission for introducing of this important topic. We look forward to continuing discussions that will help develop a fair and practical approach to non-legally binding international agreements.

 

CHAPTER X - PREVENTION AND REPRESSION OF PIRACY AND ARMED ROBBERY AT SEA

 

Mr. Chair,

 

51. Malaysia warmly welcomes and congratulates Mr. Louis Savadogo on his appointment as Special Rapporteur for this important topic. We are confident that his expertise will greatly contribute to the advancement of the Commission’s work.

 

52. Malaysia notes that with the appointment of the new Special Rapporteur, there may be adjustments to the methodology and timeline of the Commission’s work on this topic, including a potential reconsideration of the current draft articles.

 

53. Malaysia further observes that the Special Rapporteur has identified several complex issues that warrant deeper examination, particularly in view of existing gaps within the international legal framework. These include, the presence of armed security personnel aboard merchant vessels, complementary mechanisms for cooperative action beyond extradition and mutual legal assistance, the right of hot pursuit into the territory of another State, the deployment of international naval forces and other pertinent matters within the scope of the topic. As such, Malaysia looks forward to engaging constructively in the Commission’s deliberations, especially on these multifaceted legal and operational challenges.

 

54. Malaysia also takes note of the Commission’s invitation to Member States to submit additional or updated information regarding national legislation, judicial decisions, and State practice relevant to the topic. This includes matters related to Articles 100 to 107 of the United Nations Convention on the Law of the Sea, as well as legislation and practice concerning the use of uncrewed vessels and aircraft in the context of preventing and suppressing piracy and armed robbery at sea. In this regard, Malaysia wishes to reaffirm the relevance of the information submitted on 12 May 2023, which outlines our domestic legal framework and regional cooperation efforts.

 

55. With respect to uncrewed vessels, Malaysia wishes to learn more from the experiences of other States and international organizations. It is noted that the International Maritime Organization (IMO) is currently undertaking efforts to develop a regulatory code for Maritime Autonomous Surface Ships (MASS). As a preliminary observation, Malaysia is of the view that the existing international legal framework on piracy and armed robbery, including the United Nations Convention on the Law of the Sea (UNCLOS), should apply to MASS if such vessels are formally recognized as “ships.” In principle, their designation as ships would render them subject to the same legal obligations and protections as conventional, crewed vessels, without distinction.

 

56. Nevertheless, certain legal complexities warrant further consideration. For instance, while an attack on the vessel itself would fall within the scope of existing conventions and legal instruments, the same may not be true for an attack on the Remote Operation Centre (ROC) that controls the ship, particularly when the ROC is situated outside the jurisdiction of the flag State. This presents a novel challenge, as current international treaties do not anticipate the existence of such control centres operating beyond national jurisdiction. This emerging reality calls for a careful reassessment of the legal definitions and frameworks governing maritime security. These developments would potentially lead to the need to update relevant legal instruments to reflect the evolving nature of autonomous maritime operations. Malaysia believes that the Commission’s final output will provide Member States with greater clarity on the application of international law to such emerging scenarios, thereby facilitating informed domestic implementation.

 

57. Malaysia reiterates its steadfast commitment to supporting the Commission’s vital mission in advancing international law, particularly in this dynamic and evolving area. We are confident that the Commission’s continued efforts will significantly strengthen the global legal framework and foster a shared commitment among States to effectively address the threats posed by piracy and armed robbery at sea.

 

Thank you.