Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia)
Francisco Pereira Coutinho
- Natural resources — Good faith — Sovereignty — Maritime boundaries — Treaties, invalidity, termination, suspension, withdrawal — Conciliation — Settlement & discontinuance of cases — Unilateral acts
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
A. Factual Background
1 The continental shelf resources of the oil-rich Timor Sea were at the origin of yet another dispute at the International Court of Justice (ICJ). In East Timor (Portugal v Australia) (‘East Timor Case’) Portugal argued that by entering into the Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia (‘Timor Gap Treaty’), Australia violated the right of self-determination of the Timorese people and its inherent right of access to and sovereignty over the natural resources in the maritime areas adjacent to the coast of Timor-Leste (Natural Resources, Permanent Sovereignty over). The ICJ refused to consider the merits of the Portuguese claim, as this would require the determination of rights and obligations of a third state—Indonesia—in the absence of the consent of that state to accept the jurisdiction of the Court (East Timor, 26), but took the opportunity to declare that self-determination is an erga omnes right and an essential principle of contemporary international law (East Timor, 29) (Obligations erga omnes). Since the Timorese people’s right to self-determination had already been recognized by resolutions of the United Nations General Assembly (UNGA Resolution 3485 [XXX] ‘Question of Timor’ ) and Security Council (UNSC Resolution 384  ‘East Timor’), the decision of the ICJ bolstered the independence cause, which became a reality on 20 May 2002 (United Nations, General Assembly; United Nations, Security Council).
2 Since its independence, Timor-Leste had to battle for its economic survival in the negotiations with Australia over the exploration of the resources located in the semi-enclosed Timor Sea. Several treaties were adopted between the parties with the purpose of extracting oil from a disputed maritime area located between the coasts of both states—Timor Sea Treaty between the Government of East Timor and the Government of Australia (‘Timor Sea Treaty’), Agreement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste relating to the Unitization of the Sunrise and Troubadour Fields (‘Unitization Agreement’), Treaty between Australia and the Democratic Republic of Timor-Leste on Certain Maritime Arrangements in the Timor Sea (‘CMATS Treaty’).
3 On 23 April 2013, Timor-Leste instituted arbitral proceedings against Australia at the Permanent Court of Arbitration (PCA) seeking the invalidation of the CMATS Treaty on the ground that Australia did not conduct treaty negotiations in good faith (Good Faith [Bona fide]) by engaging in espionage. The Timorese were allegedly wiretapped during the negotiations of the CMATS Treaty in 2004 after Australian intelligence services installed listening devices into the wall of the negotiation room under the guise of an Australian aid program concerning renovation and construction of cabinet offices. This information was leaked to the press by a former Australian secret service officer in a bid to clear his conscience (Questions relating to the Seizure and Detention of Certain Documents and Data [Provisional Measures] Dissenting Opinion of Judge Callinan 7).
4 On 3 December 2013, the Canberra law offices of a member of the legal team representing Timor-Leste in the PCA arbitration was searched by agents of the Australian security services. Several documents and electronic devices were seized. Australian authorities approved the warrants under which the searches were carried out in order to protect Australia’s territorial integrity (Territorial Integrity and Political Independence).
B. History of the Proceedings
5 In the late afternoon of 17 December 2013, Timor-Leste instituted proceedings against Australia in the ICJ. The request related to the seizure and subsequent detention by agents of Australia of documents and data containing correspondence between Timor-Leste and its legal advisers, notably documents relating to the arbitration at the PCA. Timor-Leste argued that these actions were a breach of its rights as a sovereign State under international law to the ownership and property over the seized material, to the inviolability and immunity of this property—in particular, documents and data—as well as to the confidentiality of communications with its legal advisers. The ICJ was requested to order Australia to return the documents seized, to destroy any copies made of them, to justly and satisfactorily apologize, and to pay legal costs.
6 Timor-Leste also asked the ICJ to grant provisional measures in accordance with Art. 41 Statute of the International Court of Justice (‘ICJ Statute’), namely to order that all documents and data seized by Australia be placed in the custody of the Court pending disposal of the case, to order Australia to provide Timor-Leste and the Court with lists of all copies of documents and data seized and to destroy all such copies, and to order Australia to give assurances that it will not intercept or cause or request the interception of communications between Timor-Leste and its legal advisers.
7 Pending the decision on the provisional measures, Timor-Leste asked the President of the ICJ to exercise his powers under Art. 74 (4) Rules of Court of the ICJ (‘Rules of Court’) to order Australia to provide Timor-Leste and the Court with a list of all the documents and electronic data files seized, to seal such documents and data—and any copies thereof—to immediately deliver the sealed documents and data to the Court or to its lawyers, and to not intercept or cause or request the interception of communications between Timor-Leste and its legal advisers in relation to the case.
8 By a letter dated 18 December 2013, the President of the ICJ subsequently did the only thing that Art. 74 (4) Rules of Court allows him to do, which is to ‘call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects’. Australia was thus asked to ‘refrain from any act which might cause prejudice to the rights claimed by the Democratic Republic of East Timor’ (Questions relating to the Seizure and Detention of Certain Documents and Data [Provisional Measures] 9).
9 During the public hearings on the request for the indication of provisional measures submitted by Timor-Leste, Australia requested the stay of the proceedings until the Arbitral Tribunal rendered its judgment by arguing that the outcome of the latter could have an impact in the case before the Court. This request was denied by the ICJ in an Order from 28 January 2014, where it concluded that the dispute was sufficiently distinct from the dispute before the Arbitral Tribunal (Questions relating to the Seizure and Detention of Certain Documents and Data [Time Limits]).
C. Decisions on Provisional Measures
10 On 3 March 2014, the ICJ delivered an Order on the request made by Timor-Leste for the indication of provisional measures. As expected, as even Australia refrained from questioning the jurisdiction of the Court at this stage of the proceedings, the Court concluded that the declarations made by both parties under Art. 36 (2) ICJ Statute appear prima facie to provide ‘a basis on which it might have jurisdiction to rule on the merits of the case’ (Questions relating to the Seizure and Detention of Certain Documents and Data [Provisional Measures] 22–23). Afterwards, the Court analysed whether the conditions had been met for the establishment of provisional measures.
11 The first condition concerned whether the rights invoked by Timor-Leste were plausible under international law and whether there was a link between these rights and the provisional measures sought. The ICJ declared the plausibility of the Timorese claim of the right to communicate with its counsel and lawyers in a confidential manner in what regards issues forming the subject-matter of the pending arbitral proceedings and future negotiations between the Parties. The Court stated that from the principle of sovereign equality between states foreseen in Art. 2 United Nations Charter might derive the right of the States to confidentiality and non-interference in their communications with their legal advisers when engaging in arbitration proceedings or negotiations (Questions relating to the Seizure and Detention of Certain Documents and Data [Provisional Measures] 27) (States, Sovereign Equality). Moreover, this right claimed by Timor-Leste under international law was linked to the measures requested insofar as they sought to prevent interference by Australia with Timor-Leste’s communications with its lawyers (Questions relating to the Seizure and Detention of Certain Documents and Data [Provisional Measures] 30).
12 The second condition related to the evaluation of the risks of irreparable prejudice to the applicant’s rights and to the urgency of that threat. Australia argued that there were no such risks or urgency. At the oral hearings, the Court was presented with several undertakings taken by Australia’s Attorney-General. Some were included in a letter dated 23 December 2013 that ordered the documents seized to be sealed and kept inaccessible until the ICJ rendered a decision on provisional measures. Others were included in a written statement that declared that, until the closure of the Court’s proceedings, the materials would only be inspected for purposes of national security and that no communication of the materials or contents would occur for any purpose in connection with the exploitation of resources in the Timor Sea or related negotiations, or in connection with the cases before the ICJ or the PCA. The ICJ stated that the undertakings mitigated but did not extinguish the risks that Timor-Leste could face in the arbitral proceedings and in future maritime negotiations. Although the Attorney General had the authority to bind Australia in matters of international law, under the written statement Australia specifically reserved the right to inspect the materials in certain circumstances involving national security. Thus, a risk of disclosure of their contents still existed and, if they should be disclosed and confidentiality should be breached, the injury suffered by Timor-Leste’s rights to conduct arbitral proceedings and negotiations without interference would be irreparable (Questions relating to the Seizure and Detention of Certain Documents and Data [Provisional Measures] 44, 46–47).
13 Accordingly, the ICJ ordered Australia: i) to ensure that there was no disclosure of the materials to any persons to the disadvantage of Timor-Leste until the conclusion of the proceedings (by twelve votes to four); ii) to continue to hold the materials seized under seal until further decision (by twelve votes to four); and (iii) to not interfere in any way with communications between Timor-Leste and its legal advisers in connection with the proceedings before it, the PCA, or any future bilateral negotiations (by fifteen votes to one) (Questions relating to the Seizure and Detention of Certain Documents and Data [Provisional Measures] 50).
14 The second provisional measure was revoked by an Order of 22 April 2015 after Australia’s notification of its intention to return all the documents and data seized from the offices of the Timor-Leste’s legal advisers (Questions relating to the Seizure and Detention of Certain Documents and Data [Modification of Provisional Measures]). Following the return of the materials, Timor-Leste declared that it had achieved the purpose of its application and notified the ICJ that it wished to discontinue the proceedings. Since Australia did not object to discontinuance, the case was removed from the List of the Court by an Order of 11 June 2015 (Questions relating to the Seizure and Detention of Certain Documents and Data [Removal from the List]).
D. Assessment and Relevance
15 The Order of 3 March 2014 confirms the willingness of the ICJ to rely upon unilateral acts of states when adjudicating the indication of provisional measures (Unilateral Acts of States in International Law). The Court declared that it had no reason to believe that the Australian promise to seal and keep inaccessible the documents seized from the Timorese legal advisers would not be honoured: ‘Once a State has made such a commitment concerning its conduct, its good faith in complying with that commitment is to be presumed’ (Questions relating to the Seizure and Detention of Certain Documents and Data [Provisional Measures] 44). In Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), provisional measures were not issued because Senegalese authorities had assured that they would not allow former President of Chad Hissène Habré to leave the country pending ICJ proceedings. Had the Australian undertaking included the promise not to interfere with Timor-Leste’s communications with its lawyers in the future, as well as excluded the possibility of Australia making use of the seized materials in certain circumstances involving national security, there seems to be little doubt that the Court would similarly have concluded that the case lacked the urgency to justify the indication of provisional measures.
16 Also notable is the fact that the ICJ recognized the plausibility of the existence of the right of states to confidentiality and non-interference in their communications with their legal advisers when engaging in arbitration proceedings or negotiations, but refused to balance such a right against the equally plausible sovereign right of states to exercise enforcement jurisdiction within their territory related to the protection of national security. As Judge Donoghue pointed out in a separate opinion, the seizing of the materials ordered by the Court barred Australia from using the materials in connection with law enforcement activities, even when that did not prejudice plausible rights asserted by Timor-Leste (Questions relating to the Seizure and Detention of Certain Documents and Data [Provisional Measures] Separate Opinion of Judge Donoghue 20). However, such a balancing could only be justified if the plausible right claimed by Australia was liable to suffer an irreparable harm, and no such harm could ever occur because Australia had several mechanisms to preserve the effet utile of its criminal jurisdiction—according to media reports the former Australian agent that was the alleged source of the leak even had his passport confiscated and his house searched by the Australian authorities.
17 Timor-Leste asked for the discontinuance of the proceedings notwithstanding the fact that Australia did not afford satisfaction in the form of a formal apology; the seized material was returned by Australia with the caveat that no other implication could be drawn from this action (Questions relating to the Seizure and Detention of Certain Documents and Data [Removal from the List]). The endgame of the Timorese legal efforts in the PCA and in the ICJ was to force Australia to negotiate an equitable solution for the maritime boundary delimitation of the Timor Sea in accordance with Art. 81 (1) UN Convention on the Law of the Sea. That strategy was vindicated after Australia and Timor-Leste agreed to terminate the CMATS Treaty, which voided any claim to a boundary for fifty years, and to engage in a conciliation process under the UN Convention on the Law of the Sea in order to establish a permanent maritime frontier between the two States in the Timor Sea (Joint Statements by the Governments of Timor-Leste and Australia and the Conciliation Commission Pursuant to Annex V of the UN Convention on the Law of the Sea of 24 of January 2017) (Conciliation between Timor-Leste and Australia).
- K Oellers-Frahm ‘Article 41’ in A Zimmermann et al (eds) The Statute of the International Court of Justice: A Commentary (2nd edn OUP Oxford 2012) 1026–77.
- MF Lando ‘Case Note: Questions relating to the Seizure and Detention of Certain Documents and Data’ (2013) 3 CJICL 616–24.
- FP Coutinho and FB Gala ‘David and Goliath Revisited: A Tale About the Timor Leste/Australia Timor Sea Agreements’ (2015) 10 Texas Journal of Oil, Gas and Energy Law 429–62.
- E Kassoti The Juridical Nature of Unilateral Acts of States in International Law (Brill Nijhoff Leiden 2015).
- P Saganek Unilateral Acts of States in Public International Law (Brill Nijhoff Leiden 2016).
- CA Miles Provisional Measures before International Courts and Tribunals (CUP Cambridge 2017).
- Agreement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste relating to the Unitization of the Sunrise and Troubadour Fields (signed 6 March 2003, entered into force 23 February 2007) 2483 UNTS 317 (Unitization Agreement).
- Arbitration under the Timor Sea Treaty (Timor-Leste v Australia) (Termination Order) (20 March 2017) PCA Case No 2013-16.
- East Timor (Portugal v Australia) (Judgement)  ICJ Rep 90.
- ICJ ‘Rules of Court’ (adopted 14 April 1978, entered into force 1 July 1978).
- Joint Statements by the Governments of Timor-Leste and Australia and the Conciliation Commission Pursuant to Annex V of the UN Convention on the Law of the Sea (24 January 2017), available at https://dfat.gov.au/news/media/Pages/joint-statement-by-the-governments-of-timor-leste-and-australia-and-the-conciliation-commission.aspx (1 November 2018).
- Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Provisional Measures) (28 May 2009)  ICJ Rep 139.
- Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) (Time Limits) (28 January 2014)  ICJ Rep 136.
- Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) (Provisional Measures) (3 March 2014)  ICJ Rep 147.
- Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) (Request for the Modification of the Order Indicating Provisional Measures of 3 March 2014) (22 April 2015)  ICJ Rep 556.
- Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) (Removal from List) (11 June 2015)  ICJ Rep 572.
- Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 145 BSP 832.
- Timor Sea Treaty between the Government of East Timor and the Government of Australia (signed 20 May 2002, entered into force 2 April 2003)  ATS No 13 (Timor Sea Treaty).
- Treaty between Australia and the Democratic Republic of Timor-Leste on Certain Maritime Arrangements in the Timor Sea (signed on 12 January 2006, entered into force 23 February 2007)  ATS No 12 (CMATS Treaty).
- Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia (signed 11 December 1989, entered into force 9 February 1991)  ATS No 9 (Timor Gap Treaty).
- UNGA Res 3485 (XXX) ‘Question of Timor’ (12 December 1975) GAOR 30th Session Supp 34, 118 (adopted by 72 votes to 10, with 43 abstentions).
- United Nations Convention on the Law of the Sea (concluded 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3.
- UNSC Res 384 (1975) ‘East Timor’ (22 December 1975) SCOR 30th Year 10 (adopted unanimously).