Tuesday, 4 March 2014

Timor Leste v Australia: International Court of Justice orders Australian Attorney-General George Brandis to seal seized documents and prohibits Australia from interfering in any way in communications between Timor-Leste and its legal advisers


Noting moreover the likelihood that much of the seized material contains sensitive and confidential information relevant to the pending arbitration and that it may also include elements that are pertinent to any future maritime negotiations which may take place between the Parties, the Court finds that it is essential to ensure that the content of the seized material is not in any way or at any time divulged to any person or persons who could use it, or cause it to be used, to the disadvantage of Timor-Leste in its relations with Australia over the Timor Sea. It is therefore necessary to keep the seized documents and electronic data and any copies thereof under seal until further decision of the Court.

The Court then notes that Timor-Leste has expressed concerns over the confidentiality of its  ongoing communications with its legal advisers concerning, in particular, the conduct of the Timor Sea Treaty Arbitration, as well as the conduct of any future negotiations over the Timor Sea and its resources, a matter which is not covered by the written undertaking of the Attorney-General of 21 January 2014. The Court further finds it appropriate to require Australia not to interfere in any way in communications between Timor-Leste and its legal advisers, either in connection with the pending arbitral proceedings and with any future bilateral negotiations concerning maritime delimitation, or in connection with any other related procedure between the two States, including the present case before the Court. [International Court of Justice, Summary 2014/2,  3 March 2014]

Excerpt from International Court Of Justice  Press Release:

No. 2014/12
3 March 2014

Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia)

The Court finds that Australia shall ensure that the content of the seized material is not used to the disadvantage of Timor-Leste

THE HAGUE, 3 March 2014. The International Court of Justice (ICJ), the principal judicial organ of the United Nations, today issued its Order on the Request for the indication of provisional measures submitted by Timor-Leste on 17 December 2013 in the case concerning Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia). That Request followed the seizure on 3 December 2013 and subsequent detention, by “Agents of Australia of documents, data and other property which belongs to Timor-Leste and/or which Timor-Leste has the right to protect under international law”. According to Timor-Leste, the material seized includes documents, data and correspondence between Timor-Leste and its legal advisers relating to a pending Arbitration under the Timor Sea Treaty of 20 May 2002 between Timor-Leste and Australia.

In its Order the Court indicates the following provisional measures:

- it decides, by twelve votes to four, that Australia shall ensure that the content of the seized material is not in any way or at any time used by any person or persons to the disadvantage of Timor-Leste until the present case has been concluded;
- it also decides, by twelve votes to four, that Australia shall keep under seal the seized documents and electronic data and any copies thereof until further decision of the Court;
- it further directs, by fifteen votes to one, that Australia shall not interfere in any way in communications between Timor-Leste and its legal advisers in connection with the pending Arbitration under the Timor Sea Treaty of 20 May 2002, with any future bilateral negotiations concerning maritime delimitation, or with any other related procedure between the two States, including the present case before the Court.

Reasoning of the Court

1. Prima facie jurisdiction (paras. 18-21)

The Court notes that Timor-Leste seeks to base the jurisdiction of the Court in the case on the declaration made by it on 21 September 2012 under Article 36, paragraph 2, of the Statute and on the declaration made by Australia on 22 March 2002 under the same provision. Considering that these declarations appear, prima facie, to afford a basis on which it might have jurisdiction to rule on the merits of the case, the Court finds that it may entertain the Request for the indication of provisional measures submitted to it by Timor-Leste.

2. The rights whose protection is sought and the measures requested (paras. 22-30)

The Court recalls that its power to indicate provisional measures under Article 41 of the Statute has as its object the preservation of the respective rights claimed by the parties in a case, pending its decision on the merits thereof. Therefore, the Court may exercise this power only if it is satisfied that the rights asserted by the requesting party are at least plausible. Moreover, a link must exist between the rights which form the subject of the proceedings before the Court on the merits of the case and the provisional measures being sought.

The Court begins by observing that the principal claim of Timor-Leste is that a violation has occurred of its right to communicate with its counsel and lawyers in a confidential manner with regard to issues forming the subject-matter of pending arbitral proceedings and possible future negotiations on maritime delimitation between Timor-Leste and Australia. The Court notes that this claimed right might be derived from the principle of the sovereign equality of States, which is one of the fundamental principles of the international order and is reflected in Article 2, paragraph 1, of the Charter of the United Nations. More specifically, equality of the parties must be preserved when they are involved, pursuant to Article 2, paragraph 3, of the Charter, in the process of settling an international dispute by peaceful means. The Court accordingly considers that at least some of the rights for which Timor-Leste seeks protection namely, the right to conduct arbitration proceedings or negotiations without interference by Australia, including the right of confidentiality and of non-interference in its communications with its legal advisers are plausible.

The Court then turns to the issue of the link between the rights claimed and the provisional measures requested. It concludes that a link exists between Timor-Leste’s claimed rights and the provisional measures sought, since these, by their very nature, are intended to protect Timor-Leste’s claimed rights to conduct, without interference by Australia, arbitral proceedings and future negotiations, and to communicate freely with its legal advisers, counsel and lawyers to that end.

3. Risk of irreparable prejudice and urgency (paras. 31-48)

The Court recalls that, pursuant to Article 41 of its Statute, it has the power to indicate provisional measures when irreparable prejudice could be caused to rights which are the subject of judicial proceedings before it. That power will be exercised only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights in dispute before the Court gives its final decision.

The Court is of the view that the right of Timor-Leste to conduct arbitral proceedings and negotiations without interference could suffer irreparable harm if Australia failed to immediately safeguard the confidentiality of the material seized by its Agents on 3 December 2013. In particular, the Court considers that there could be a very serious detrimental effect on Timor-Leste’s position in the Timor Sea Treaty Arbitration, and in future maritime negotiations with Australia, should the seized material be divulged to any person or persons involved or likely to be involved in that arbitration or in negotiations on behalf of Australia.

The Court notes, however, that the Attorney-General of Australia gave an undertaking on 21 January 2014 which included commitments to the effect that the seized material will not be made available to any part of the Australian Government for any purpose in connection with the exploitation of resources in the Timor Sea or related negotiations, or in connection with the conduct of the current case before the Court, or of the proceedings of the Timor Sea Treaty Tribunal. The Court further notes that the Agent of Australia stated that “the Attorney-General of the Commonwealth of Australia [had] the actual and ostensible authority to bind Australia as a matter of both Australian law and international law”. The Court considers that, once a State has made such a commitment concerning its conduct, its good faith in complying with that commitment is to be presumed. The Court therefore has no reason to believe that the written undertaking of 21 January 2014 will not be implemented by Australia.

The Court nevertheless notes that, in certain circumstances involving national security, the Government of Australia envisages the possibility of making use of the seized material. The Court further observes that the commitment of Australia to keep the seized material sealed has only been given until the Court’s decision on the Request for the indication of provisional measures. The Court accordingly concludes that, while the written undertaking of the Attorney-General of 21 January 2014 makes a significant contribution towards mitigating the imminent risk of irreparable prejudice created by the seizure of the above-mentioned material to Timor-Leste’s rights — particularly its right to the confidentiality of that material being duly safeguarded — it does not remove that risk entirely.

The Court concludes from the foregoing that the conditions required by its Statute for it to indicate provisional measures have been met....

Full press release here.

Summary of Court Order here.

Excerpt from Summary showing vote of judge ad hoc Callinan nominated to sit in the matter of Timor Leste v Australia by Attorney-General George Brandis:

(1) By twelve votes to four,

 Australia shall ensure that the content of the seized material is not in any way or at any time
used by any person or persons to the disadvantage of Timor-Leste until the present case has been concluded;

IN FAVOUR: President Tomka; Vice-President Sepúlveda-Amor; Judges Owada, Abraham,
Bennouna, Skotnikov, Cançado Trindade, Yusuf, Xue, Gaja, Bhandari; Judge ad hoc Cot;

AGAINST: Judges Keith, Greenwood, Donoghue; Judge ad hoc Callinan;

(2) By twelve votes to four,
                                                        
 Australia shall keep under seal the seized documents and electronic data and any copies
thereof until further decision of the Court;

IN FAVOUR: President Tomka; Vice-President Sepúlveda-Amor; Judges Owada, Abraham,
Bennouna, Skotnikov, Cançado Trindade, Yusuf, Xue, Gaja, Bhandari; Judge ad hoc Cot;

AGAINST: Judges Keith, Greenwood, Donoghue; Judge ad hoc Callinan;

(3) By fifteen votes to one,

 Australia shall not interfere in any way in communications between Timor-Leste and its
legal advisers in connection with the pending Arbitration under the Timor Sea Treaty of
20 May 2002 between Timor-Leste and Australia, with any future bilateral negotiations concerningmaritime delimitation, or with any other related procedure between the two States, including the present case before the Court.

IN FAVOUR: President Tomka; Vice-President Sepúlveda-Amor; Judges Owada, Abraham,
Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue,
Gaja, Bhandari; Judge ad hoc Cot;

AGAINST: Judge ad hoc Callinan.

UPDATE

Australian Attorney-General George Brandis releases his spin.........

SENATOR THE HON GEORGE BRANDIS QC
ATTORNEY-GENERAL
MINISTER FOR THE ARTS

MEDIA RELEASE

INTERNATIONAL COURT OF JUSTICE DECISION TIMOR LESTE v AUSTRALIA

The Australian Government is pleased with the decision of the International Court of Justice in Timor-Leste v Australia, delivered at The Hague overnight, refusing Timor-Leste’s application for the delivery up of the documents taken into possession by ASIO, in execution of a search warrant in Canberra in December 2013.

The order of the Court extended, until the final hearing of the case, undertakings which were offered by Australia during the course of the hearing. These orders will, of course, be complied with. This is a good outcome for Australia.

4 March 2014

Media contact: Scott Bolitho 0477 722 189

1 comment:

Ursula Tunks said...

Thank goodness some sense has prevailed, what a pity it needed to go to the International Court. Even more pitiful is the fact that many Australians themselves need to access the International Court to seek Justice from a system within Australia that is anything but Just.