In an order on provisional measures issued yesterday, the court also directed Australia to refrain from interfering with communications between East Timor and its legal advisers in connection with the pending arbitration and any future bilateral negotiations between the two states over maritime delimitation.

East Timor applied to the ICJ last December after Australia’s national security service raided the offices of Canberra-based lawyer Bernard Collaery and seized documents and electronic data on the grounds that they contained intelligence related to security matters.

Collaery is a member of the counsel team representing East Timor in an arbitration it lodged against Australia last April under a 2002 treaty that carved up rights to seabed oil and gas reserves in the Timor Sea worth an estimated US$40 billion. In the arbitration, East Timor alleges that a supplementary treaty concerning the same reserves is invalid because Australia spied on the Timorese Cabinet during its negotiation. The state says it is relying on testimony by a former member of Australia’s security services who carried out the wiretapping, and who was also reportedly targeted in the raids last December.

In the ICJ proceedings, East Timor argues that the seized documents and data from Collaery’s office included privileged material relating to its legal strategy in the arbitration. It has asked the court to declare that the seizure violated its sovereignty as well as its property rights under international law and to compel Australia to make a formal apology.

East Timor also asked the ICJ for provisional measures in the form of an order that Australia should immediately seal all the seized material and deliver it to the court; destroy any copies in its possession; provide a list of people that had seen the material; and refrain from intercepting further communications between the state and its legal advisers.

The court held three days of hearings on the provisional measures request in January, with Sir Elihu Lauterpacht and Sir Michael Wood of 20 Essex Street making oral arguments for East Timor (the state’s legal team also includes lawyers from DLA Piper in London). James Crawford AC SC of Matrix Chambers was among those representing Australia.

At the hearings, Australia argued that, even if the seized material belongs to East Timor, which has not yet been established, there is no general principle of immunity of state papers and property; and that the confidentiality of a state’s communications with its legal advisers does not apply if they concern a crime or threat to national security. Australia’s attorney general also provided a fresh undertaking during the hearings to safeguard the confidentiality of the documents pending the court’s decision on provisional measures.

In its decision, the court said it did not yet have to determine if the rights East Timor seeks to protect actually exist, only that they were plausible. The court found that at least some of those rights – namely the right to conduct arbitration and negotiations without interference by Australia, including the right of confidentiality in its communications with its legal advisers – did meet that threshold.

While the attorney general’s undertaking “makes a significant contribution towards mitigating the imminent risk of irreparable prejudice” to East Timor, the court said it did not remove the risk entirely as the undertaking still envisages the potential use of the seized infromation for national security purposes.

Accordingly, the court ruled by 12 votes to four that Australia must ensure that the seized material is not used to the disadvantage of East Timor until the ICJ proceedings are concluded; and that the material is kept under seal until a further decision of the court.

The four dissenting judges were Kenneth Keith of New Zealand, Sir Christopher Greenwood of the UK, Joan Donoghue of the US, and Ian Callinan, the ad hoc judge appointed by Australia. Brazilian judge Antônio Cançado Trindade also issued a separate opinion, in which he described the majority's decision as “better than nothing” but argued that they should have gone further by ordering that the material be delivered to the custody of the court.

The court also ruled by 15 votes to one that Australia shall not interfere in any way with communications between East Timor and its legal advisers in connection with the pending arbitration, any future bilateral negotiations over maritime delimitation or with any other related procedure between the two states, including the ICJ case. Judge Callinan was the only dissenter.

Contacted by GAR, Collaery says, “It was a significant interlocutory decision as it vindicated the firm response taken by East Timor. The substantive hearing on the seizure is awaited.”

He adds, “I welcome the order of the court that our legal professional privilege be respected and interception not occur. The court observed that Australia did not address our request for such an order.”

Australia’s attorney general, George Brandis, told media, “This is a good outcome for Australia”. He says his government is “pleased” that the court refused East Timor’s request for the documents to be delivered to the court.

Meanwhile the arbitration, which is being administered by the Permanent Court of Arbitration in The Hague, remains at an early stage. A tribunal chaired by Tullio Treves of Italy, sitting with Lord Collins of Mapesbury and W Michael Reisman of the US, held a procedural hearing last December shortly after the raids took place. The tribunal has scheduled an interim hearing for 29 March and various pleading deadlines ahead of a hearing on jurisdiction and the merits that begins on 27 September.

A joint venture between Australia’s Woodside, ConocoPhilips, Royal Dutch Shell and Osaka Gas currently holds the rights to develop the disputed Timor Sea reserves, known as the Greater Sunrise fields, which are thought to contain 5.1 trillion cubic feet of gas and 226 million barrels of natural-gas condensate. However, only 20 per cent of the reserves fall within a joint development area established by the Timor Sea Treaty, with the rest belonging to Australia.

Australia has recently been hit with fresh allegations of espionage against a sovereign state and its legal team. Last month, the New York Times reported that the Australian Signals Directorate – the equivalent of the US’s National Security Agency (NSA) – had monitored communications between a US law firm and Indonesian government officials concerning trade negotiations with the US.

The report cites a February 2013 document provided by former NSA contractor Edward Snowden in which the Australian agency volunteered to share the information, including privileged communications, with the NSA. The law firm is not identified in the leaked document but the newspaper notes that Mayer Brown was advising Indonesia on trade issues at the time. The law firm told the paper it was unaware of any surveillance.

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

Representing East Timor

Agent

  • Joaquim da Fonseca, Ambassador of East Timor to the UK

Co-agents

  • José Luís Gutteres, Minister for Foreign Affairs and Co-operation
  • Nelson dos Santos, Ambassador of East Timor to Belgium and the EU

Counsel and advocates

  • Sir Elihu Lauterpacht CBE QC of the University of Cambridge
  • Vaughan Lowe QC of theUniversity of Oxford
  • Sir Michael Wood KCMG of 20 Essex Street

Counsel

  • DLA Piper

Partner Janet Legrand and associate Emma Martin in London

  • Collaery Lawyers

Senior associate Jolan Draaisma

  • Andrew Legg
  • Andrew Sanger, University of Cambridge
  • Eran Sthoeger (junior counsel)

Representing Australia

Agent

  • John Reid of the Attorney-General’s Department

Co-agent

  • Neil Mules AO, ambassador of Australia to the Netherlands

Counsel and advocates

  • Justin Gleeson SC, Solicitor-General of Australia,
  • James Crawford AC SC, University of Cambridge and Matrix Chambers in London
  • Bill Campbell QC, general counsel (international law), Attorney-General’s Department,
  • Henry Burmester AO QC, special counsel, Australian Government Solicitor,

Counsel

  • Chester Brown, University of Sydney, Selbourne Chambers in Sydney and Essex Court Chambers in London,
  • Rowan Nicholson, University of Cambridge

Advisers

  • Attorney General’s Department

Camille Goodman, Stephanie Ierino, Amelia Telec, Esme Shirlow, Vicki McConaghie and Natalie Mojsoska (as assistant)

  • Embassy of Australia in the Netherlands

First secretary Todd Quinn and third secretary William Underwood

Arbitration under the Timor Sea Treaty (Timor-Leste v. Australia)

Tribunal

  • Tullio Treves (Italy) (chair)
  • Lord Collins of Mapesbury (UK)
  • W Michael Reisman (US)

Representing East Timor

Agent

  • Joaquim da Fonseca, Ambassador of East Timor to the UK

Co-agent

  • Amy McMullen, counsellor (legal affairs), Embassy of East Timor to the UK

Counsel

  • Sir Elihu Lauterpacht CBE QC of 20 Essex Street in London

  • Vaughan Lowe QC of Essex Court Chambers

  • Collaery Lawyers

Bernard Collaery and Jolan Draaisma

Representing Australia

Agent

  • John Reid, first assistant secretary, international law and human rights division, Attorney-General's Department

Counsel

  • Justin Gleeson SC, Solicitor-General of the Commonwealth of Australia
  • James Crawford AC SC of the Lauterpacht Centre for International Law