Timor-Leste v Australia
| Jurisdiction | Derecho Internacional |
| Judge | Sepúiveda-Amor,Cot,Sebutinde,Bennouna,Gevorgian,Abraham,Keith,Owada,Greenwood,Xue,Tomka,Donoghue,Robinson,Cançado Trindade,Bhandari,Callinan,Gaja,Yusuf,Skotnikov |
| Court | International Court of Justice |
| Date | 11 June 2015 |
International Court of Justice
(Tomka, President; Sepúiveda-Amor, Vice-President; Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue, Gaja, and Bhandari, Judges; Callinan2 and Cot,3Judges ad hoc)
(Abraham, President; Yusuf, Vice-President; Owada, Tomka, Bennouna, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari, Robinson and Gevorgian, Judges; Callinan and Cot, Judges ad hoc)
(Abraham, President)
Questions Relating to the Seizure and Detention of Certain Documents and Data
International Court of Justice — Provisional measures of protection — Criteria — Prima facie basis for jurisdiction — Plausibility of rights — Link between rights to be protected and measures sought — Risk of irreparable harm — Court free to order different measures from those requested — Binding nature of provisional measures — Relationship between measures and proceedings before different international tribunal — Seizure by one party to arbitration of legal documents from legal adviser of other party — Whether plausible right to confidentiality — Whether need to protect — Undertaking by Attorney-General of seizing State — Presumption of good faith — Whether undertaking affording sufficient protection — Power to modify Order for Provisional Measures — Rules of Court, Article 76 — Removal of case from List
International tribunals — Conduct of proceedings — Good faith — Equality of parties — Confidentiality of communications between party and its legal advisers — Seizure by other party of material resulting from those communications — Whether contrary to international law — Seized material relating to arbitration between two States — Material having national security implications for seizing State — Whether material concerning commission of criminal offence by former official of seizing State
General principles of international law — Confidentiality of communications between State and its legal advisers — Seizure by other State of material resulting from such communications — Legal professional privilege — Sovereign equality of States — Equality of parties in international litigation — Good faith
Summary: The facts:—In 2006 Timor-Leste and Australia concluded a treaty regarding resources in the Timor Sea. In 2013 allegations were made, apparently based upon statements by a former member of the Australian Secret Intelligence Organisation (“ASIO”), that Australian intelligence officers had bugged the offices of the cabinet of Timor-Leste and that Australia had thereby obtained information regarding Timor-Leste's negotiating positions at the time that the 2006 treaty was under negotiation, giving Australia an unfair advantage in those negotiations. Timor-Leste initiated arbitration proceedings with Australia under the provisions of the United Nations Convention on the Law of the Sea, 1982. Those proceedings were conducted under the auspices of the Permanent Court of Arbitration. On 3 December 2013, while the arbitration proceedings were pending, Australian officials, acting under a warrant issued by the Attorney-General of Australia pursuant to Section 25 of the Australian Security Intelligence Organisation Act, searched the offices in the Australian Capital Territory of a lawyer acting for Timor-Leste in the arbitration. They seized a quantity of documents and data which, according to Timor-Leste, included advice from Timor-Leste's lawyers regarding the arbitration proceedings and other documents relating to those proceedings.
Timor-Leste maintained that the documents and data in question were the property of Timor-Leste and that their seizure and subsequent detention violated the sovereignty of Timor-Leste and its rights under international law and any relevant domestic law. Timor-Leste commenced proceedings
against Australia before the International Court of Justice, seeking a declaration that its rights had been infringed, an order for the return of the documents and data and satisfaction in the form of an apology and payment of costs.4 Timor-Leste requested that the Court grant provisional measures of protection, pursuant to Article 41 of the Statute of the Court, ordering Australia to seal all the documents and data seized and deliver them to the Court pending the final resolution of the case, to destroy all copies, to furnish a complete list of those persons to whom any of the documents or data had been disclosed and give an assurance that it would not intercept or cause the interception of any communications between Timor-Leste and its legal advisers.5Australia contended that, even if the documents and data were the property of Timor-Leste, there was no general principle of immunity or inviolability of papers and property of one State held in the territory of another State. If there was a principle that a State was entitled to the confidentiality of communications with its legal advisers, that principle was not absolute. In particular, Australia contended that any such principle did not apply when the communication concerned the commission of an offence. Australia maintained that it had a legitimate interest in obtaining evidence of a serious criminal offence which might have been committed by the former ASIO officer and using that evidence in a prosecution.
During the hearings on the request, counsel for Australia communicated to the Court an undertaking by the Attorney-General of Australia6 to the effect that the material seized and detained would not be used for any purpose other than national security interests, including a potential prosecution, and that the material would not be seen by anyone involved in the arbitration proceedings. The undertaking was further clarified by counsel during the hearings.7
Held:—(1)(a) (by twelve votes to four, Judges Keith, Greenwood and Donoghue and Judge ad hoc Callinan dissenting) Australia was to ensure that the content of the seized material was not in any way or at any time used by any person or persons to the detriment of Timor-Leste until the present case had been concluded (para. 55(1)).
(b) (by twelve votes to four, Judges Keith, Greenwood and Donoghue and Judge ad hoc Callinan dissenting) Australia was to keep under seal the seized documents and electronic data and any copies thereof until the further decision of the Court (para. 55(2)).
(c) (by fifteen votes to one, Judge ad hoc Callinan dissenting) Australia was not to interfere in any way in communications between Timor-Leste and its legal advisers in connection with the arbitration proceedings, with any future bilateral negotiations concerning maritime delimitation, or with any related procedure between the two States, including the present case (para. 55(3)).
(2) Both Parties had made declarations accepting the jurisdiction of the Court under Article 36(2) of the Statute. While Australia had reserved the right to contest the jurisdiction of the Court at a later stage, it had not done so in the present phase of the proceedings. The requirement that there appear, prima facie, to be a basis for the jurisdiction of the Court was therefore satisfied (paras. 18–21).
(3) At this stage of the proceedings, the Court was not called upon to determine definitively whether the rights asserted by Timor-Leste existed, it had only to decide whether the rights claimed by Timor-Leste for which protection was sought were plausible. The claimed right to confidential communication between a State and its legal advisers in relation to litigation and negotiations could flow from the principle of sovereign equality of States and the equality of parties in litigation and negotiation and was thus plausible (paras. 22–8).
(4) There was a sufficient link between the rights claimed and the measures requested (paras. 29–30).
(5) The right of Timor-Leste to conduct arbitral proceedings and negotiations without interference could suffer irreparable harm if Australia failed immediately to safeguard the confidentiality of the material seized on 3 December 2013. Measures were necessary to prevent such harm, notwithstanding the undertaking given by the Attorney-General of Australia. The Court had no reason to doubt that the undertakings would be honoured; once a State had made such a commitment concerning its conduct, its good faith in complying with that commitment was to be presumed. The undertaking, however, envisaged that use might be made of the material seized for national security purposes and there remained a risk of disclosure of this potentially highly prejudicial information. While the undertaking thus made a significant contribution towards mitigating the risk, it was not in itself sufficient (paras. 31–48).
(6) The provisional measures ordered by the Court did not have to be identical to those requested. In the present case, it was essential to ensure that the content of the seized material was not in any way divulged to anyone who could use it to the detriment of Timor-Leste in its relations with Australia over the Timor Sea. It was therefore necessary that the material be kept under seal until further decision of the Court. It was also appropriate to order Australia not to interfere in any way with communications between Timor-Leste and its legal advisers regarding the arbitration proceedings, any future negotiations concerning maritime delimitation or any related procedure, including the proceedings before the Court (paras. 49–52).
Dissenting Opinion of Judge Keith: The record showed that, whatever the limitations of the original undertaking by the Attorney-General of Australia, by the close of the hearings, Australia had given a clear undertaking, binding as a matter of international law, which afforded sufficient protection to the rights which Timor-Leste sought to protect and thus removed any risk of irreparable harm being done to those rights before the Court could rule on the merits of the case (pp. 22–6).
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