A Balancing Act; National Security, Legal Privilege And Provisional Orders...

On the 6th May, 2015, the International Court of Justice (ICJ) concluded the matter of Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia) by authorizing the return of all documents and data seized by the Australian Government to the legal advisor to Timor-Leste.

The case is particularly interesting not solely for its conclusion, but perhaps more so for its contribution to the development of International Law principles, particularly as they relate to the balance between National Security and Legal Privilege, the ICJ’s ability to make provisional orders and the status of a State’s undertaking in that regard, as well as the right under International Law to the protection of communications between a party and its legal counsel.

The matter may well be more widely discussed for its interim decision rather than its final one, for good reason.  This matter raised and addressed the following issues:
       
  1. Is the ICJ able to make Provisional Orders in matters before it? If so, what are the principles behind this power?
  2. Does the principle of Legal Privilege exist in International Law in order to protect communications? If so, does it apply to the documents seized?
  3. Can a State overrule that principle where domestic principles of National Security take precedent?

Background

In early 2013, Timor-Leste, a new addition entrant to Statehood, instituted proceedings against Australia through the Timor Sea Treaty’s dispute provision relating to the 2006 Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS).  CMATS had previously addressed the distribution of revenue between the two countries as they pertain to the mining of oil and gas deposits in the Timor Sea.  Timor-Leste alleged that Australia engaged in espionage during the negotiations, and, through the principles of Fraud, Misrepresentation and general principles of Espionage, the Treaty should be voided.

In late 2013, agents of the Australian Security and Intelligence Office (ASIO) entered the offices of the Australian-based legal representative of Timor-Leste in Canberra and seized documents and materials related to the arbitration and negotiations of the CMATS, as well as communications between Timor-Leste and its legal advisor.

Timor-Leste immediately sought interim measures of protection before the ICJ.  In their application, Timor-Leste claimed the confidential documents and data seized by ASIO related to its legal strategy towards the pending Timor Sea Treaty arbitration.  Of relevance is that the arbitration was to cover, inter alia, the allegations made public in the media that Australia had engaged in espionage during negotiations for the Treaty, supported by a witness who was a former Australian Intelligence Officer.  In turn Australia, in its submissions, stated that an Australian Intelligence Officer may have committed an offence under Australian Law by disclosing secret information, including details of espionage, and that even if there existed in International Law a concept of Legal Privilege, that principle was secondary to the public and national security interests of a State, per Australia’s domestic legal position.

Provisional Measures 

On the 3rd March 2014, the ICJ took the following measures[1]:
  • 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;
  • Australia shall keep under seal the seized documents and electronic data and any copies thereof until further decision of the Court;
  • 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 concerning maritime delimitation, or with any other related procedure between the two States, including the present case before the Court.
In indicating Provisional Measures, the ICJ was satisfied that the provisions relied on by Timor-Leste appeared, prima facie, to afford a basis on which its jurisdiction could be founded[2].  Australia did not question jurisdiction over the issuing of Provisional Measures.

Issue 1: The ICJ’s ability to make Provisional Orders                                                                                         

The Statute of the International Court of Justice[3] (ICJ Statute) establishes the procedures and powers of the ICJ.  Central to the ICJ’s power to make any order regarding a State or hear a matter is the Article 36(2)[4] requirement that the States recognize the jurisdiction of the Court: “The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation.”  It is, however, the combination of Articles 38(1)[5] and 41(1)[6] which establish the power to make Provisional Orders; the former establishes that “general principles of law” apply, opening the door for Provisional, or in other words Interim or Injunction, Orders, and the latter specifically identifying “provisional measures” as appropriate in the protections of States’ rights.

The ICJ’s own Rules of Court further allow for the making of Provisional Measures, by “call(ing) 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.”[7] 

The purpose of Provisional Measures is without question the preservation of States’ Rights as they relate to international peace, security and justice, per Article 2 of the United Nations Charter of 1945[8], as well as a view towards ensuring the “status quo” is not disturbed while a final judgment is sought[9], per the decision on Provisional Measures in Perenco v Ecuador, much in the same way as an injunction would operate domestically in Australia.  Failure by a State to ensure such “status quo”, as indicated by the Provisional Measures, is upheld is considered a breach of international obligation, per La Grand[10].  Indeed the language of the Provisional Measure, though not specifically referred to as “orders”, amount to as much[11].

As will be discussed under “Legal Privilege”, the ICJ satisfied its own high standard of proof of the existence of a risk of irreparable prejudice[12], a standard well-established in the Court’s history and satisfied in this matter by the nature of the documents seized and the ongoing Arbitration matter.  Indeed the application of Provisional Measures will only be taken should a matter satisfy the risk of irreparable prejudice.

Issue 2: The existence of Legal Privilege in International Law


Timor-Leste argued strongly for the assertion that Legal Privilege is a principle of International Law and furthermore is binding per Article 38(1)(c) of the ICJ's Statute.  The ICJ, in issuing the Provisional Order, was satisfied that the “rights asserted by the requesting party are at least plausible”.[13]  Crucially, the Court considered Articles 2(1) and 2(3) of the United Nations Charter and held that where a State is “engaged in the peaceful settlement of a dispute with another State … (they) would expect to undertake (that process) without interference by the other party in the preparation and conduct of its case”.[14]  The ICJ therefore found that there existed Privilege for the protection of documents and communications with counsel.

The ICJ has not been alone in finding in favour of Legal Privilege.  The tribunal in Libananco v Turkey[15] considered that “respect for confidentiality and legal privilege” and the right of disputing parties “to seek advice and to advance their respective cases freely and without interference” were fundamental tenets at the heart of the ICSID arbitral process.  Furthermore, Legal Privilege is addressed by the IBA Rules on the Taking of Evidence in International Arbitration 2010[16].

The ICJ furthermore considered whether the absence of Privilege would allow “real and imminent risk that irreparable prejudice”[17] to be caused to the applicant.  In fact, satisfying themselves as to the existence of Privilege in International Law and the “real and imminent risk” of prejudice to the rights of Timor-Leste convinced the ICJ that Provisional Orders were necessary as a means to address the potential breach of the confidential materials seized[18].

Issue 3: National Security vs. Legal Privilege


The ICJ did not make any judgments or comment directly on the issue of National Security as it relates to abrogating Legal Privilege, however by ordering the documents seized to be sealed, requiring that they be returned to Timor-Leste and insisting on a ban on interference in communications between Timor-Leste and its legal advisors, the ICJ has relied on the doctrine of non-interference[19] to ensure any National Security concerns do not infringe on the Legal Privilege rights in this matter, however have left the door open for further, future analysis of the issue.

Final Notes


From the moment of application to the ICJ through the Provisional Measures and the final orders, the Australian Government has been both publically supportive of the ICJ decisions[20] as well as free from any judgment of wrongdoing by the Court.  The supportiveness is understandable; from the outset Australia maintained that the seizure was a matter of National Security[21], and although the people and documents involved were also involved in a separate matter under arbitration, the effect of the National Security designation means that the documents seized would not weaken or prejudice Timor-Leste’s position in regards to the other dispute, particularly as a directive from ASIO has been issued to ensure the documents were not released to other Departments.  In essence, the ICJ issued the Provisional Measures to achieve the same goal; ensure there was no risk of prejudice, however, given the nature of the complaints and allegations of espionage made by Timor-Leste in the other matter, the question remains to be answered as to whether a State can ever assure the ICJ and the International community of its absolute innocence from impropriety in a case in which the very documents and communications in a separate matter are seized in the manner they were here.

The ICJ left the issue of Legal Privilege open by requesting Timor-Leste be left free from interference, yet did not go so far as to demand freedom from espionage, and furthermore did not add to the discussion regarding the conflict between Legal Privilege and National Security, leaving Timor-Leste with no further recourse save an assurance from the Australian Government that the documents would not be placed in hands which would prejudice Timor-Leste’s case.

Timor-Leste may, understandably, have reservations regarding that assurance.




[1] Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia) Provisional Measures.
[2] Per Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order of 8 March 2011, I.C.J. Reports 2011 (I), pp. 17-18, para. 49)
[3] Statute of the International Court of Justice (1945).
[4] Statute of the International Court of Justice (1945) Article 36(2).
[5] Statute of the International Court of Justice (1945) Article 38(1): The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: … (c) the general principles of law recognized by civilized nations.
[6] Statute of the International Court of Justice (1945) Article 41(1): The Court shall have the 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.
[7] International Court of Justice Rules of Court Article 74(4).
[8] Article 2 of the United Nations Charter of 1945 (1 UNTS XVI).
[9] Perenco v Ecuador (ICSID Case No ARB/08/6).
[10] La Grand Case (Germany v United States) 2001 ICJ Rep.
[11] Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia & Montenegro) (ICJ 2007).
[12] Aegean Sea Continental Shelf Case (Greece v Turkey) ICJ Reports 1978; Case Concerning Passage Through the Great Belt (Finland v Denmark) (Provisional Measures) ICJ Reports 1991.
[13] Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia) Provisional Measures, Para 22.
[14] Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia) Provisional Measures, Para 28.
[15] Libananco v Turkey ICSID Case No ARB/06/8 Decision on Preliminary Issues, para 78.
[16] IBA Rules on the Taking of Evidence in International Arbitration 2010 Article 9.
[17] Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia) Provisional Order, Para 32.
[18] Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia) Provisional Order, Paras 42 and 47.
[19] Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia) Provisional Measures, Para 28.
[20] 4 March 2014: http://www.attorneygeneral.gov.au/Mediareleases/Pages/2014/First%20Quarter/4March2014- InternationalCourtofJusticedecisionTimorLestevAustralia.aspx
[21] 4 December 2013: http://www.attorneygeneral.gov.au/Mediareleases/Pages/2013/Fourth%20quarter/4- December-2013---Ministerial-Statement---Execution-of-ASIO-Search-Warrants.aspx

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