In brief

The International Court of Justice (ICJ) has heard submissions from Australia and East Timor on provisional measures sought by East Timor in proceedings relating to documents seized by the Australian Security Intelligence Organisation (ASIO) from the office of an Australian lawyer representing East Timor in an upcoming arbitration with Australia.

At the hearing, which was held in The Hague from 20-22 January, East Timor sought a number of provisional measures including that Australia:

  • deliver the seized documents and data into the custody of the ICJ,
  • deliver to East Timor and the ICJ a list of the documents and data seized in the raid that have been disclosed to any person and a list of those persons,
  • deliver a list of any copies made of the seized documents and destroy any copies made of the documents, and
  • give an assurance that it will not intercept communications between East Timor and its legal advisors.

The date on which the ICJ will hand down its decision on the provisional measures is yet to be announced.

Background

A detailed overview of the background to the proceeding was set out in an earlier post1, East Timor institutes proceedings against Australia in relation to documents seized from office of Australian lawyer. The seized documents relate to an ongoing dispute between East Timor and Australia over allegations of Australian espionage during negotiations to sign the 2006 Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS). East Timor is claiming that the seizure of the documents amounts to a violation of East Timor’s sovereignty and a breach of international law.

Australia has rejected East Timor’s demand for the return of the documents on the basis that the return of the documents may threaten its national security. The Australian Attorney-General has given a number of undertakings to the ICJ that the documents will not be read by any individual or agency that is not directly involved in national security or law enforcement, including himself. The hearing was conducted without the Court, or the Australian legal team, having viewed the documents.

Jurisdiction

East Timor has invoked declarations made by Australia and East Timor pursuant to Article 36(2) of the ICJ Statute, as the basis for the ICJ’s jurisdiction to hear its claim in relation to the seized documents. Article 36(2) allows States to make declarations accepting the Court’s jurisdiction as compulsory. Although Australia has made reservations to its acceptance, none were relevant to the case before the Court.

However, Australia submitted that the ICJ should not order provisional measures as the remedies available to East Timor through the Australian legal system had not been exhausted. East Timor, citing the Cofu Channel case2 and the Arrest Warrant case3, argued this rule had no relevance where a State asserts its own rights against the State that has harmed it.

Key issues in dispute at hearing

The two key issues at the hearing on provisional measures were:

  1. whether rights were owed under international law to East Timor and, if so, whether those rights had been infringed by Australia, and
  2. whether the essential preconditions for the invoking of provisional measures had been met.

Plausibility of East Timor’s principal claim

For the Court to order the provisional measures sought by East Timor, East Timor needed to demonstrate:

  1. that the international law rights which East Timor asserted in its principal claim that it was owed were plausible, and
  2. a direct link between those rights and the provisional measures sought.

East Timor asserted that the rights asserted were plausible as:

  • the seized documents were the property of East Timor under international law, ‘analogous to documents in the possession of a foreign diplomatic or consular mission’. By seizing the documents, Australia had infringed the inviolability and immunity of East Timor’s State property. East Timor claimed that inviolability and immunity arose as a result of ‘broader principles of general customary international law’,
  • in the alternative, the documents were the subject of legal professional privilege. East Timor asserted that ‘international tribunals have recognised that legal professional privilege is a general principle of law’.

In response, Australia argued East Timor’s assertion of an absolute right of property at international law was unsupported, as the assertion that each State has proprietary rights over all documents produced by its agents in another State was a ‘quantum leap in the expansion of public international law’, and would recognise a ‘new form of extra-territoriality’. Australia denied any general customary law principle of immunity and inviolability over State property.

In relation to East Timor’s alternative claim of legal professional privilege, Australia submitted that privilege does not apply to documents produced in pursuance of a criminal offence, fraud or other improper purpose. Australia argued that there are reasonable grounds to suspect that the seized documents disclose information relevant to Australia’s national security, and therefore involve the commission of serious criminal offences. In response, East Timor stated that Australian domestic limitations to legal professional privilege should not be applied in an international Court. Australia insisted that as a matter of State practice, many States recognise this crime/fraud exception to privilege, or have similar national security offences.

National security justification

Australia submitted that maintenance of national security was a right owed to Australia under international law, and that a real risk to national security justified ASIO’s seizure of the documents. In particular, Australia submitted that:

  • East Timor’s lawyer, Mr Collaery, has publicly stated that the witness statement includes information about alleged Asis espionage operations in Dili,
  • East Timor proposes to publish this information publicly, and
  • the information could be used as a ‘springboard’ to identify four persons involved in the espionage operation in Dili.

In response, East Timor submitted that States should refrain from allowing national security to adversely affect international proceedings between sovereign States. East Timor submitted that Australia had an ‘unfair advantage’ in the upcoming arbitral proceedings as a result of the raid, arguing that Australia’s actions violated ‘fundamental principles governing the conduct of negotiations and litigation’.

Preconditions for the indication of provisional measures

East Timor submitted that the provisional measures sought were urgent and necessary to preserve the rights owed to East Timor under international law, as the undertakings given by Australia were inadequate to safeguard East Timor’s interests pending the ICJ’s final decision.

Australia submitted that the preconditions for the indication of provisional measures had not been met by East Timor, as:

  • the international law rights claimed by East Timor were not plausible;
  • the measures requested by East Timor lacked any link with the rights asserted by East Timor under international law,
  • the undertakings given by Australia’s Attorney-General were sufficient to protect any legitimate right said to be held by East Timor, and consequently there was neither any risk of irreparable prejudice or any urgency to the measures sought, and
  • another forum, being the Arbitral Tribunal constituted under the Timor Sea Treaty, was already exercising its powers in relation to the same subject matter.

East Timor did not present any evidence in response to suggest that the undertakings had not been honoured to date or will not be honoured in the future.

Decision on provisional measures

The Court will make its decision on provisional measures on a date to be announced. A date for the hearing of East Timor’s principal claim is yet to be fixed.