蔡沛倫：A State’s Rights in Relation to Communications with Its Legal Advisers: The ICJ’s Provisional Measures Order in Timor-Leste v. Australia

Pei-Lun Tsai

Ph.D. Candidate, School of Law,
University of Nottingham

On 17 December 2013, Timor-Leste instituted proceedings against Australia before the International Court of Justice (ICJ), claiming that Australia violated international law by seizing and detaining documents and data taken from the office of a legal adviser to Timor-Leste, including materials concerning a pending arbitration between Timor-Leste and Australia.  On the same day, Timor-Leste submitted a request for the indication of provisional measures, including, inter alia, that Australia transfer custody of the seized materials to the ICJ and assure that it would not intercept future communications between Timor-Leste and its legal advisers.  On 3 March 2014, the Court adopted an order, granting certain parts of Timor-Leste’s request, and the present contribution seeks to introduce, through an analysis of this order, the ICJ’s power to indicate provisional measures and its opinion concerning a State’s communications with its legal advisers.

Background

 

This current dispute between Timor-Leste and Australia originated from the ongoing Arbitration under the Timor Sea Treaty of 20 May 2002 (Timor Sea Treaty Arbitration), in which Timor-Leste claims that the Treaty between Australia and the Democratic Republic of Timor-Leste on Certain Maritime Arrangements in the Timor Sea is invalid since, during the treaty negotiations, Australia engaged in espionage and did not conduct the negotiations in good faith.  According to Australia’s submission (written observations on Timor-Leste’s provisional measures request) to the ICJ, as the two States cooperated to establish the tribunal for the Timor Sea Treaty Arbitration, representatives of Timor-Leste occasionally voiced relevant allegations in the media, including those hinting that Timor-Leste had witnesses who formerly served in the Australia Secret Intelligence Services.  On 3 December 2013, based on search warrants issued by the Australian Attorney-General, the Australian Security Intelligence Organisation (ASIO) searched the office of a legal adviser of Timor-Leste and seized certain documents and data.

 

While Timor-Leste considered the operation as Australia’s attempt to undermine the Timor Sea Treaty Arbitration, the operation was justified by the Australian Attorney-General on the grounds that the seized materials contained “intelligence relevant to national security matters”.  On 17 December, Timor-Leste instituted proceedings against Australia before the ICJ and submitted a request for the indication of provisional measures.  In response, Australia requested the Court to refuse Timor-Leste’s request and stay the proceedings until the conclusion of the Timor Sea Treaty Arbitration.  Australia’s request for a stay of the proceedings before the Court was not granted, and after public hearings held in January 2014, the Court delivered its order on 3 March.

 

The Court’s Order in Timor-Leste v. Australia

 

While Article 41 of the ICJ Statute provides basis for the Court’s “power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party”, the Statute itself does not lay down the specific criteria for the indication of provisional measures.  The Rules of Court contain a number of provisions on the procedural aspects of the provisional measures proceedings, but one needs to turn to the jurisprudence of the Court to ascertain the substantive criteria.  Firstly, the basis of the Court’s jurisdiction, as claimed by the Applicant State, must prima facie confer a ground for the Court to exercise its jurisdiction.  Secondly, as the purpose of provisional measures is to preserve the respective rights of either party, the rights alleged by the requesting State must be at least plausible, and there must be a link between the alleged rights and the provisional measures requested.  Lastly, there must be a real and imminent risk that the alleged rights would suffer irreparable prejudice.  The following discussion summarises the Court’s order of 3 March 2014 and refers to a number of the Court’s past decisions that are significant for the understanding of each of the criteria.

 

Prima facie jurisdiction

 

As the Court indicated in its provisional measures order in the Nuclear Tests case between New Zealand and France,

 

on a request for provisional measures the Court need not, before indicating them, finally satisfy itself that it has jurisdiction on the merits of the case, and yet ought not to indicate such measures unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded.[1]

 

In the case under discussion, Timor-Leste invoked the declarations respectively made by the two parties under Article 36(2) of the ICJ Statute, recognising the Court’s jurisdiction, and Australia chose not to raise questions of jurisdiction in relation to the request of provisional measures.  These declarations were deemed by the Court as sufficient in establishing prima facie basis for jurisdiction.  The first criterion is thus satisfied.

 

Plausible rights and their link with the measures sought

 

At the stage of provisional measures proceedings, the Court is not required to give a definite answer as to whether the rights claimed by the Applicant exist or whether the rights have been violated.  Yet, as the Court stated in Questions relating to the Obligation to Prosecute or Extradite, “the power of the Court to indicate provisional measures should be exercised only if the Court is satisfied that the rights asserted by a party are at least plausible”.[2]    The Court has not illustrated the standard that should be adopted to determine such plausibility.  Neither has the Court clearly defined the required link between the plausible rights and the provisional measures sought.  The determination of whether the alleged rights are plausible and whether the required link existed is thus made on a case by case basis.

 

In the case under discussion, Timor-Leste claimed two sets of rights: a) ownership and property rights over the seized materials, including the rights to inviolability and immunity of those materials; and b) the right to the confidentiality of communications with its legal advisers.  Timor-Leste asserted that the former derived from its status as a sovereign State, and the latter from “legal professional privilege”, which protects the confidentiality of communications between legal counsels and their clients, and which should be considered as a general principle of law.  Australia, on the other hand, rejected the existence of a general principle of immunity or inviolability of State property.  Additionally, Australia stated that the principle of protecting the confidentiality of communications between a State and its legal advisers is not absolute, and a State is not entitled to such confidentiality in such circumstances as when the communications in question threaten national security of another State.  On this issue, the Court opined that the rights claimed by Timor-Leste might emanate from the principle of sovereign equality, and such equality is of particular significance when the parties are involved in a dispute settlement process, such as the Timor Sea Treaty Arbitration in the instant case.  Against this background, the Court took the position that Timor-Leste had plausible rights in relation to the protection and confidentiality of the arbitration-related communications with its legal advisers.

 

Turning to the provisional measures sought by Timor-Leste, they included the transfer of custody of the seized documents and data to the ICJ, the delivery of several lists to Timor-Leste and the ICJ, indicating a) the documents and data that had been disclosed to a third person; b) the identities of such persons; and c) the copies of documents and data that had been made, the destruction of those copies, and the assurance of no interception of future communications between Timor-Leste and its legal advisers.  The Court considered that a link indeed existed between the rights asserted by Timor-Leste and these requested measures, which sought to thwart further access to the seized materials by Australia and to prevent Australia’s interference with future communications between Timor-Leste and its legal advisers.

 

Risk of irreparable prejudice and urgency

 

In relation to the last criterion, provisional measures are “only justified if there is urgency in the sense that action prejudicial to the rights of either party is likely to be taken before such final decision is given”,[3] and the ICJ’s power to indicate such measures “presupposes that irreparable prejudice should not be caused to rights which are the subject of dispute in judicial proceedings”.[4]  The possibility of “irreparable prejudice” is more easily observed in cases involving the life and safety of human beings, such as the situations in theBreard,[5] Lagrand,[6] and Avena cases,[7] all involving imminent executions following death penalty convictions.  In other cases, a more detailed assessment of irreparability and urgency is thus needed.

 

In the case under discussion, Timor-Leste claimed that, due to the “sensitive nature” of the materials seized by Australia, Australia’s conduct created an imminent risk of irreparable prejudice to the rights of Timor-Leste.  According to Timor-Leste, it is likely that most of the seized materials concern the ongoing Timor Sea Treaty arbitration and maritime negotiations between the two parties, so if no immediate measure is taken, Timor-Leste’s rights to conduct arbitration and negotiations would be irreversibly compromised.  Australia did not object the close association between the seized materials and the rights of Timor-Leste, but it argued that there was no imminent risk since it, through its Attorney-General, has undertaken not to take measures that would negatively affect the rights that the Court may find Timor-Leste to possess.  The instructions and undertakings by the Australian Attorney-General included communications to the Australian Parliament, the tribunal set up for the Timor Sea Treaty Arbitration, the ASIO, and the ICJ.  In particular, the written undertaking provided by the Attorney-General to the ICJ, dated 21 January 2014, declared that the Attorney-General would not inform himself of the content of the seized materials, that the materials would only be used by the Australian government for national security purposes, and that the materials would not be made available for the government for “any purpose relating to the exploitation of resources in the Timor Sea or related negotiations, or relating to the conduct of: a) these proceedings; and b) the proceedings in the [tribunal established for the Timor Sea Treaty Arbitration]”.

 

The Court was of the opinion that the confidentiality of the seized materials must be safeguarded in order to prevent irreparable harm to Timor-Leste’s rights to conduct arbitration proceedings and negotiations.  The Court noted the undertakings of the Australian Attorney-General, which the Court presumed would be complied by Australia and would lessen the risk of irreparable prejudice to.  On the other hand, the Court also noted that the Attorney-General acknowledged the possibility that the seized materials would be used by the Australian government in certain circumstances.  The Court considered that if those circumstances present themselves, the disclosure of information provided in the seized materials risks jeopardising the confidentiality of the materials.  In short, even though the risk of irreparable prejudice to Timor-Leste’s rights has been reduced, it nevertheless exists and the indication of provisional measures remains necessary.

 

Eventually, the Court indicated three provisional measures, requesting that Australia a) ensure the seized materials are not used to the disadvantage of Timor-Leste until the conclusion of the instant case; b) keep all seized materials and copies made under seal; and c) not interference with communications between Timor-Leste and its legal advisers in relation to the Timor Sea Treaty Arbitration and future maritime delimitation negotiations, and other related procedures between the two parties.

 

Observations

 

In this instant case, in terms of the conditions for the indication of provisional measures, the Court did not depart from the approach taken in past jurisprudence.  Provisional measures orders are in nature different from final judgments, which is demonstrated in the criteria discussed above: “prima facie” jurisdiction, “plausible” rights, and “risk of irreparable prejudice” (instead of confirmed violation of international law).  At the end of each provisional measures order, it is the practice of the Court to affirm that the Court’s decision in the order “in no way prejudges the question of the jurisdiction of the Court … or any questions relating to the admissibility of the Application, or relating to the merits themselves”.  Additionally, the Court tends to reiterate that provisional measures are binding upon the parties, which was first established in judgment of the LaGrand case.[8]

 

As the Court examined the existence of risk of irreparable prejudice, the undertakings of the Australian Attorney-General played an essential role.  Australia even recognised that the Attorney-General “[had] the actual and ostensible authority to bind Australia as a matter of both Australian law and international law”.  Under international law, it is indeed possible for unilateral declarations of a State to create binding obligations.  While it is generally accepted that heads of States/Governments and ministers of foreign affairs would have the capacity to make such declarations,[9] whether the statements of an attorney-general would create the same effect is questionable.  In the instant case, the Court’s acceptance that the Attorney-General’s undertakings reduced the risk of irreparable prejudice to Timor-Leste’s rights may be interpreted as the Court treating the undertakings as capable of creating binding effect under international law.  However, it is important to note the Court merely stated that it had “no reason to believe that the written undertaking … will not be implemented by Australia” and that Australia’s “good faith in complying with that commitment is to be presumed”, and it did not explicitly acknowledge the binding effect of the Attorney-General’s undertakings under international law.

 

In relation to the final list of provisional measures, they are obviously, and perhaps unsurprisingly, not identical to the measures requested by Timor-Leste.  For instance, the measures indicated by the Court did not require the transfer of custody of the seized materials and the destruction of copies made by Australia.  Additionally, with regards to future communications between Timor-Leste and its legal advisers, Timor-Leste asked the Court to require that “Australia give an assurance that it will not intercept or cause or request the interception”, while the Court ultimately requested Australia to “not interfere”.  It can be assumed that such discrepancy was deliberate.  It is possible that the Court chose to use the word “interfere” to cover a wider array of activities that might be disadvantageous to the communications between Timor-Leste and its legal advisers.  Yet it is also possible that the word “interception” was discarded to avoid direct association with the current international controversies in relation to global surveillance.

 

After the Court adopted this provisional measures order, both parties appear to be satisfied with the decision, with Timor-Leste considering it “a win for the people of both Timor-Leste and Australia” and Australia characterising it “a good outcome for Australia”.  It may be expected that Australia would comply with the order.  Nevertheless, it remains to be seen in subsequent proceedings what the Court’s opinion is in relation to more difficult questions, such as the balance of rights of Timor-Leste to the confidentiality of communications with its legal advisers and Australia’s national security interests and more broadly, the legal issues brought about by the practice of spying.

 

External Links:

• Case page on the ICJ’s website
  • Timor-Leste’s request for the indication of provisional measures
  • Australia’s written observations on Timor-Leste’s request for provisional measures
  • Full text of the order
  • Summary of the order and dissenting/separate opinions
• Video: The ICJ’s delivery of the order (United Nations Web TV) (including links to videos of the hearings held in January 2014)
• The parties’ press releases following the adoption of the order
  • Timor-Leste (Minister of State and of the Presidency of the Council of Ministers and  Official Spokesperson for the Government of Timor-Leste)
  • Australia (Attorney-General and Minister for the Arts​)