The three disparate cases decided by the International Court of Justice (Court or ICJ) in 2014 may not contribute much to the development of substantive international law, but they are instructive about the operations of the Court. Perhaps the Court was not at its finest in terms of coherent legal reasoning in these three cases; it certainly avoided difficult questions in all of them. Yet each of the three cases had significant numbers of separate and dissenting opinions, which sometimes reveal more about the Court's reasoning than is apparent from the judgment or order itself.
THE COURT'S JUDICIAL ACTIVITY
Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia)
On December 3, 2013, members of the Australian secret service, acting under a warrant issued by the Australian attorney general, raided the Australian office of a lawyer working for Timor-Leste and seized documents and computer data. On December 17, 2013, in response, Timor-Leste brought a case against Australia before the Court for a declaratory judgment that the seizure and continued detention of the documents and data were a violation of its sovereignty and property rights. (1) On the same day, it requested provisional measures: that all the documents and data seized be sealed and delivered into the custody of the Court; that Australia provide a list of all the documents and data that it had disclosed and transmitted, and the names of any persons to whom it had transmitted the material; that it destroy any copies of the documents and data; and that it give an assurance to not intercept communications between Timor-Leste and its legal advisers. (2) Given these allegations, it was not surprising that the Court ordered provisional measures on March 3, 2014, to protect Timor-Leste's rights. (3)
But the case was more complicated than that. The Australian lawyer whose office was raided by the Australian secret service was working for Timor-Leste on another case involving the actions of the Australian secret service, a case brought on April 23, 2013, by Timor-Leste against Australia before an arbitral tribunal under the auspices of the Permanent Court of Arbitration (PCA). (4) That case was an attempt by Timor-Leste to challenge the validity of the 2006 Treaty on Certain Maritime Arrangements in the East Timor Sea (2006 Treaty). (5) The 2006 Treaty was one of a series of agreements elaborating on the Timor Sea Treaty. (6) The Timor Sea Treaty--agreed to on May 20, 2002, the day of Timor-Leste's independence--had not established a maritime boundary between Timor-Leste and Australia, but instead it established a joint petroleum development zone on Timor-Leste's side of the median line between the two states. (7) The 2006 Treaty revised some of the arrangements on the sharing of resources between the two states; it also froze the parties' maritime boundary claims for fifty years. (8) Moreover, to prevent litigation on the question of boundary delimitation, in 2002 (just before Timor-Leste's independence), Australia had made new reservations excluding boundary disputes from the ICJ's jurisdiction. (9)
Timor-Leste's position before the PCA was that the 2006 Treaty was invalid because Australia had spied on the government of Timor-Leste during the negotiations and thus had not conducted the negotiations in good faith. A whistle-blower, who was a former Australian secret agent, had informed Timor-Leste that Australia had bugged its cabinet office during the treaty negotiations. (10) That is, Australia had spied on Timor-Leste to find out its position during the 2006 Treaty negotiations. (11) When Australia's behavior was revealed to Timor-Leste by the former Australian secret agent and made public, Australia raided the office of Timor-Leste's lawyer and seized the documents that revealed Australia's espionage. (12) This seizure apparently included material given to Timor-Leste by the whisde-blower agent. (13)
But Australia did not accept that it was guilty of any wrongdoing. It refused to return the documents when asked to do so by Timor-Leste. In its pleadings before the ICJ, Australia tried to challenge the narrative of Timor-Leste and to portray itself as the real victim. (14) It invoked national security as justification for its actions, although it did not specify the nature of the threat to its national security until a late stage of the proceedings when it asserted its concern that a former intelligence officer may have disclosed national security information. (15) It also said that the lives of Australian nationals--those agents who had carried out the bugging of Timor-Leste's offices--might be in danger. (16) This type of reliance on vague national security arguments to avoid scrutiny is familiar but, as Michael Wood, the former principal legal adviser to the UK Foreign and Commonwealth Office, argued for Timor-Leste, " [N]ational security and the enforcement of criminal law are not some magic wand that makes the rights and obligations of States under international law vanish." (17) As explained below, the Court did not accept Australia's position that it would be justified in using the seized material for national security purposes.
This case is a strange one, with a rather novel subject matter, closely tied to proceedings in another tribunal. It is hard to avoid the inference that Australia's position in the 2014 provisional measures case before the ICJ was driven by the PCA arbitration and, in particular, by Australia's desire to resist any renegotiation of the 2006 Treaty and to prevent any boundary delimitation between itself and Timor-Leste, especially as this outcome might lead to demands by Indonesia for the renegotiation of its own boundary agreements with Australia.
Timor-Leste began its oral argument by referring to the history of relations between the two states. (18) Australia's record in its relations with Timor-Leste is undoubtedly less than admirable. In 1989, Australia had concluded the Timor Gap Treaty with Indonesia on the exploitation of seabed resources in the seas between what is now Timor-Leste and Australia, (19) thus implicitly acknowledging Indonesia's title to Timor-Leste. The attempt in 1991 of Portugal, as the former colonial power in Timor-Leste, to bring an action against Australia for violating international law notoriously failed because Indonesia was not included as a party to the case. (20) Today, the legal duty of states not to recognize as lawful the illegal seizure of territory is even clearer in light of Article 41 of the International Law Commission's 2001 Articles on Responsibility of States for Internationally Wrongful Acts. (21) This article provides that no state shall recognize as lawful a situation created by a serious breach of an obligation arising under a peremptory norm of general international law and that it should not render aid or assistance in maintaining that situation. (22) In the Wall advisory opinion, the Court reaffirmed this fundamental principle. (23)
The Court has over time evolved a clear framework for decisions on provisional measures within the provisions of Article 41 of its Statute and Articles 74-75 of its Rules of Court. Some of the applicable rules are long-standing; others, such as the requirement that the applicant's claim be plausible, are more recent. First, the Court must have prima facie jurisdiction on the merits. (24) This assessment was straightforward on the facts of the case as both parties had made declarations under the "optional clause," Article 36(2) of the ICJ Statute. (25) However, the Court noted that Australia had reserved its right to raise questions of jurisdiction and admissibility at the merits stage. (26) Australia apparently envisaged that it might later rely on its reservation to the optional clause, excluding disputes that it had agreed to settle by other means, that is by resort to the PCA. (27) Australia was technically entitled to do so, (28) and the Court has, in the past, come to a different conclusion on jurisdiction on the merits from its finding on prima facie jurisdiction at the provisional measures stage--most famously in the Georgia v. Russia case. (29) In that case, it found prima facie jurisdiction at the provisional measures stage (30) but later held that it had no jurisdiction to decide on the merits. (31) In a related argument, Australia suggested in its pleadings that the ICJ should defer to the PCA, arguing that the claims for provisional measures made by Timor-Leste were not a matter for the ICJ to resolve. (32) This argument was rejected by the ICJ without discussion, as was Australia's lengthy argument that Timor-Leste should have resorted to Australian domestic remedies. (33)
Second, the Court may only indicate provisional measures where (1) the rights asserted by the requesting party are "plausible," and (2) a link exists between the rights that form the subject matter of the merits and the provisional measures being sought. (34) This rather opaque requirement that the rights asserted be "plausible" is a relatively recent addition to the Court's framework on provisional measures. It was first stipulated by the Court in Belgium v. Senegal in 2009. (35) But it seems that the Court in that case simply made express what had formerly been an unacknowledged factor in the Court's decision making on provisional measures.
Was Timor-Leste's claim on the merits that Australia's actions violated its sovereignty plausible? Australia did not accept the principle of the inviolability of a state's communications with its lawyers, (36) and Timor-Leste in its pleadings seemed to have some difficulty as to how exactly to establish this principle. It invoked a range of different arguments, including property rights, immunity, confidentiality as a general principle of law, and the equality of states. (37) Not surprisingly, little specific authority exists on this central point because it...