STATEMENT BY SOLICITOR-GENERAL DAPHNE HONG, ON AGENDA ITEM 78, ON THE REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE WORK OF ITS SEVENTY-SIXTH AND SEVENTY-SEVENTH SESSIONS (CLUSTER I: CHAPTER V OF A/80/10, AND CHAPTERS IV, V AND XIII OF A/81/10),

Madam Chair,

1.               Thank you for giving me the floor. I am pleased to address Chapter V of the Report of the International Law Commission or ILC on the work of its seventy-sixth session and Chapters IV, V and XIII of the Report of the ILC on the work of its seventy-seventh session.

2.               I begin with the topic “Sea-level rise in relation to international law”.

3.               Last year, the 80^th UNGA, in Resolution 80/164, invited States to reflect on the ILC’s work on sea-level rise in relation to the ongoing work of the General Assembly in 2026. Allow me to express some of Singapore’s further views on the subtopic of the protection of persons affected by sea-level rise, which Singapore believes to be least addressed of the three subtopics in the ILC Study Group’s Report.

4.               Singapore joins other small island States in emphasising the severity of the dangers posed to our populations by sea-level rise. As a low-lying and densely populated island State, we are keenly aware of the potential human costs of sea-level rise.

5.               Singapore notes the ILC Study Group’s conclusion that there is currently no dedicated legal framework applicable to the protection of persons affected by sea-level rise. My delegation believes that the effective protection of persons affected by sea-level rise will require solutions that are specific to each unique context. We look forward to considering with other delegations the possible ways forward presented by the ILC Study Group, such as developing bilateral, regional, and multilateral instruments and mechanisms specific to climate change-related sea-level rise. At the same time, discussions on the appropriate legal framework should not delay practical action. The search for greater legal clarity should proceed in parallel with concrete efforts to protect persons affected by sea-level rise.

6.               Singapore considers that there are two principles that must guide international action to protect persons affected by sea-level rise.

7.               First, the duty to cooperate. As the International Court of Justice noted in its Advisory Opinion, “co-operation in addressing sea level rise is not a matter of choice for States but a legal obligation”. The Court stated that the legal obligation to co-operate requires States, in the context of sea level rise, to work together with a view to achieving equitable solutions, taking into account the rights of affected States and those of their populations.^[1] My delegation further notes that while the affected State is the primary bearer of human rights obligations, under the UN Charter, Member States pledge themselves to take joint and separate action in cooperation with the UN for the achievement of, among other things, universal respect for and observance of human rights.  

8.               Second, the duty to cooperate, while applicable to all States, may vary in its level of application depending on additional criteria, including the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances. While States affected by sea-level rise have the primary right and duty to protect their populations from the adverse effects of sea-level rise, disproportionately affected States and populations should not be left to shoulder the burden of sea-level rise without assistance from the international community.

9.               The other approach proposed by the ILC Study Group, is to interpret and apply existing instruments and rules of international law to take into account, as appropriate, elements for legal protection of persons affected by sea-level rise as discussed in the Study Group. During these discussions, the Study Group had also observed that these elements were broad and of varying legal relevance. We would thus welcome further study of the ILC’s proposed approach with other States, including the examination of relevant State practice.

10.           Singapore looks forward to hearing the further views of other delegations in the course of the present debate, and engaging with other delegations on the important topic of protecting persons affected by sea-level rise.

11.           Madam Chair, I now turn to the topic “Immunity of State officials from foreign criminal jurisdiction”.

12.           Singapore expresses its appreciation to the Commission for completing its work on the topic “immunity of state officials from foreign criminal jurisdiction” in an open and consultative manner. This being the ILC’s longest-running topic, we also wish to commend the Special Rapporteur, Mr Claudio Gross Guilloff, for his tireless work, and would also like to express our deepest appreciation to previous ILC rapporteurs, Mr Roman Kolodkin and the late Ms Concepción Escobar Hernández, for their invaluable contributions.

13.           Singapore was among delegations that submitted written comments to the Commission on how the draft articles could be clarified or improved. In this regard, we greatly appreciate the Commission’s clear efforts to engage with Member States. We also appreciate the Commission’s recognition of the importance of striking a balance between preventing impunity and in ensuring the sovereignty of States, especially through procedural safeguards that accord a necessary margin of appreciation and flexibility to States.

14.           We remain of the view that the draft articles continue to raise concerns. We have provided our comments in previous Sixth Committee debates as well as in writing previously. Our written comments are available on the Commission’s website. A number of our comments made in the course of the Commission’s work on this topic have yet to be addressed.

15.           To highlight one example, my delegation has previously emphasised that the implementation of these draft articles will also need to take into consideration practical realities and challenges faced by competent authorities in the exercise of their criminal jurisdiction. This concern runs through a few of the draft articles. For instance, unfortunately, the Special Rapporteur’s proposed addition of the phrase “as far as practicable” to draft article 8 was not included. Further, there are only two exceptions in draft article 9, related to the confidentiality of an ongoing investigation and the proper conduct of criminal proceedings, that have been identified by the Commission to cater to when a forum State need not notify the State of the official before initiating criminal proceedings or taking coercive measures. My delegation also understands that the draft articles do not impair the ability of frontline officers to take necessary action in situations when the State official in question poses a threat to life or to public safety.

16.           My delegation further notes with some concern that divergences on draft article 6 (previously draft article 7) remain within the Commission. In particular, we note that the provisional adoption of draft article 6 was put to a vote, and that members of the Drafting Committee, in delivering their explanations of vote, had expressed strong reservations on this draft article in plenary, both in terms of its customary status and to its inclusion. Against this backdrop, draft article 6 should not be included.

17.           Madam Chair, Singapore is committed to preventing impunity. At the same time, the topic of immunity touches on important procedural rights and operational challenges faced by States in the exercise of criminal jurisdiction, and crucial and practical aspects of Members’ international relations. We are therefore of the view that especial care should be taken in the consideration of these draft articles.

18.           My delegation looks forward to hearing the views of other delegations in the course of the present debate, and is committed to working together with other delegations on the way forward for these draft articles.  

19.           I now turn to the topic “General Principles of Law”. My delegation wishes to extend our appreciation to the Special Rapporteur, Ambassador Marcelo Vásquez-Bermúdez, and to the Commission for their work on this topic. My delegation congratulates the Commission on the adoption of the 12 draft conclusions and the commentaries on second reading.

20.           We note with appreciation the efforts of the Special Rapporteur and the Commission to take into consideration the comments and observations of Governments on the draft conclusions on general principles of law after the first reading in 2023. In this regard, my delegation wishes to briefly share its views on four of the draft conclusions as adopted on second reading.   

21.           First, on draft Conclusion 7, my delegation is pleased to note that the corresponding commentary refines the methodology for identifying general principles of law formed within the international legal system. In particular, we support the clarification that recognition by the community of nations should be wide and representative, and include the different regions of the world.

22.           However, we reiterate that there remains some difficulty with the term “intrinsic” as defined in the commentary to draft Conclusion 7. According to the commentary, a principle that is intrinsic to the international legal system is one that reflects and regulates the basic features of the international legal system. Some examples cited in the commentary, such as “sovereign equality”, do provide some insight into what the Commission means by “reflecting and regulating the basic features of the international legal system”. However, it remains unclear how the other examples cited reflect or regulate the basic features of the international legal system, even if they may enjoy a degree of recognition as a general principle of law. In this vein, we caution against conflating the recognition of a principle’s existence with recognition of it as being intrinsic to the international legal system.

23.           Second, on draft Conclusion 10, we support its updated commentary, which provides greater clarity on the examples cited without definitively asserting whether they are indeed general principles of law.

24.           Third, on draft Conclusion 11, we also appreciate the Commission’s work in updating the commentary to delineate the distinction between general principles of law and customary international law, and also articulate the relationship between them.

25.           Finally, regarding draft Conclusion 12 on general principles of law with a limited scope of application, my delegation continues to have concerns. It should be made clear that this is an area in which the law is still developing, which has been observed by the Special Rapporteur in the Fourth Report. Further, we reiterate our concern that creating this new category would appear to contradict draft Conclusion 5 requiring that general principles be common to the various legal systems of the world. 

26.           Bearing the above in mind, my delegation recognises the value of the draft Conclusions and commentaries as a useful reference for States. Nonetheless, there are aspects of the draft Conclusions and commentaries that need to be approached with caution, for the reasons outlined above.

27.           I turn finally to the topic “Other decisions and conclusions of the Commission”.

28.           My delegation congratulates Mr Masahiko Asada on his appointment as Special Rapporteur for the topic “Identification and legal consequences of obligations erga omnes in international law” and we look forward to engaging with his work on this topic.

29.           My delegation also notes with interest that the topic “The right to regulate in international investment law”, proposed by Ms Vilawan Mangklatanakul, has been included in the Commission’s long-term programme of work. We agree that this is a topically relevant issue and that the work by the Commission could usefully contribute to greater clarity on the state of the law.

30.           Lastly, my delegation is heartened that the Working Group on methods of work and procedures of the Commission has made progress on proposals for improving the Commission’s working methods. We encourage the Working Group to finalize both its handbook and report at the seventy-eighth session of the Commission.

31.           Thank you, Madam Chair.

^[1] Obligations of States in respect of Climate Change, Advisory Opinion, p. 107, para 364-365