International Court of Justice-provisional measures-irreparable harm-attorney-client privilege
Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia). Provisional Measures Order. At http://www.icj-cij.org. International Court of Justice, March 3, 2014.
On March 3, 2014, the International Court of Justice (Court or ICJ) granted provisional measures in a proceeding brought by Timor-Leste (East Timor) against Australia alleging that the latter had violated international law (and interfered with East Timor's sovereignty) by seizing documents and electronic data containing legal advice regarding a separate dispute between the two countries being arbitrated under the auspices of the Permanent Court of Arbitration (PCA). (1) In its decision, the Court found that a plausible right exists under international law for East Timor to communicate in confidence with its legal advisers and that East Timor faced an urgent risk of irreparable prejudice if the contents of the material in question were communicated to any Australian involved in the PCA arbitration, the present Court case, or potential future maritime delimitation negotiations with East Timor.
The 2002 Timor Sea Treaty (2) apportioned petroleum resources in the Timor Sea between Australia and East Timor. In 2006, the Certain Maritime Arrangements in the Timor Sea Treaty (CMATS Treaty) reapportioned the resource allocation and, with certain exceptions, extended the terms of the Timor Sea Treaty from thirty to fifty years--until 2057. (3) It also precluded the parties from asserting claims to sovereign rights, jurisdiction, or maritime boundaries for the same period.
In April 2013, East Timor commenced an arbitration against Australia under the CMATS Treaty's dispute settlement provisions, challenging the validity of the treaty on the ground that during its negotiation Australia had allegedly intercepted the internal discussions of East Timor's cabinet meetings and hence had not negotiated in good faith. (4) The details of the arbitration are confidential, but from what has been stated in filings and transcripts on the Court's website, as well as in analyses on other websites, (5) it appears that East Timor's Australian lawyer, Bernard Collaery, learned from a former member of the Australian Secret Intelligence Service that four of its agents posing as aid workers had hidden microphones in the East Timor cabinet meeting room during the 2004 negotiation of the CMATS Treaty. East Timor thus apparently alleges that the CMATS Treaty is invalid under the law of treaties and under customary international law.
On December 3, 2013, while Collaery was in The Hague in connection with the arbitration, the Australian government executed a search warrant issued by the Australian attorney general under the Australian Security Intelligence Organization Act of 1979 and searched and removed material from Collaery's office in Australia. The office contained copies of documents and electronic data concerning the arbitration and potential maritime negotiations, including legal advice of East Timor's British lawyers. A week later, on December 10, new Australian attorneys for East Timor sought a copy of the search warrant, return of the material, and a list of all the material seized, but to no avail.
On December 17, 2013, East Timor filed an application before the ICJ seeking a declaration that the seizure of those materials violated East Timor's sovereignty and its property and other rights and an order that the materials be returned and that any material not returned be destroyed. In the same filing, East Timor requested the indication of provisional measures, arguing that the material would provide Australia with privileged information and irreversibly weaken East Timor's position in the arbitration. East Timor also indicated concern about continuing Australian surveillance and its own ability to conduct confidential communications with its legal advisers. It made a series of requests, including that the material be sealed and delivered to the Court and that Australia give assurances that future communications would not be intercepted.
In opposing the interim measures request, Australia asserted among other things that the matter should be dealt with in the arbitration (in which a hearing that had been scheduled for September 2014 was postponed that month (6)) and that East Timor should be satisfied with an undertaking by the Australian attorney general that the materials would not be shared with Australia's Court team.
On December 18, 2013, the president of the Court, acting under Article 74(4) of the Court's rules, (7) wrote to Australia calling on it to "refrain from any act which might cause prejudice to the rights claimed" by East Timor (para. 9).
In hearings on the provisional measures request from January 20 to 22, 2014, (8) East Timor argued both that it owned the seized materials, which were thus inviolable and immune from seizure under treaty and customary international law, and that the materials were subject to legal privilege as a general principle of law. Provisional measures, it maintained, were urgent and necessary to prevent...