ON 3 March 2014 the International Court of Justice ordered provisional measures in Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) (Order of 3 March 2014), a case that raises novel issues regarding the integrity of international dispute settlement. The dispute between the parties arose out of the Australian Security Intelligence Organisation's seizure, on 3 December 2013, of documents, data, and other property from the offices of Timor-Leste's legal adviser in Narrabundah, Australia. Timor-Leste claimed that the seized material related to a pending arbitration between itself and Australia under the Timor Sea Treaty of 20 May 2002, which is being administered under the auspices of the Permanent Court of Arbitration (PCA). These PCA proceedings concern separate allegations that Australia placed Timor-Leste's offices under electronic surveillance during the negotiation of the Timor Sea Treaty.

In its provisional measures request, filed on 17 December 2013 along with an application instituting proceedings, Timor-Leste asked the Court to order Australia to seal and deliver the seized materials to the Court, to provide lists of all materials copied or disclosed to any person, and to destroy such materials. Timor-Leste additionally asked the Court to order Australia to give an assurance that it would refrain from intercepting communications between Timor-Leste and its legal advisers.

After establishing prima facie jurisdiction over the merits of the case based on the parties’ declarations under Article 36(2) of its Statute, the Court examined whether it had the power to indicate provisional measures under Article 41 of the Statute. The Court's first line of analysis concerned the plausibility of the rights asserted by Timor-Leste, namely the right to confidential communications with legal advisers. The Court determined that a State engaged in peaceful dispute settlement through arbitration or negotiations has a plausible right to the protection of related communications with counsel, including the right of confidentiality and non-interference in communications with legal advisers. The Court derived this right from the principle of the sovereign equality of States, as reflected in Article 2(1) of the UN Charter. According to the Court, the equality of the parties must be preserved when they are in the process of peaceful dispute settlement under Article 2(3) of the Charter. The Court also found a link between Timor-Leste's claimed rights and its requested provisional measures, which aim to protect its right to engage in arbitration and negotiations without interference and on a confidential basis.

The manner in which the Court derived the right to the protection of communications between States engaged in peaceful dispute settlement and their counsel is open to question. The very broad principle of sovereign equality, as set forth without elaboration in the UN Charter, provided the basis for the Court's formulation of the relatively specific rights to confidentiality and non-interference, which the Court appeared to view as aspects of the right to the protection of communications between States and their counsel. As noted by Judge Greenwood in his dissenting opinion, the Court might have found a more persuasive legal basis for these rights in general principles of law under Article 38(1)(c) of the Court's Statute. A survey of domestic legal approaches to the protection of client-counsel communications may have been precluded by the time pressures of provisional measures proceedings, but perhaps at the merits stage the Court will explore this legal basis.

The Court's second line of analysis concerned the real and imminent risk that irreparable prejudice would be caused to Timor-Leste's rights before the Court's final judgment. This examination focused on Australia's written undertaking of 21 January 2014, according to which the Australian Attorney General would not inform himself of the content of the seized material. If it became necessary for him to do so, then he would bring this to the Court's attention, at which time he would make further undertakings. Furthermore, the Australian Government would only use the material for national security purposes, which included potential law enforcement referrals and prosecutions. Finally, the Australian Government would not have access to the seized material, or information derived from it, for any purpose related to the ICJ or PCA proceedings, the exploitation of resources in the Timor Sea, or related negotiations. During oral proceedings, the Australian Solicitor General confirmed, in response to a question from the bench, that no one involved in the arbitration or negotiations had been informed of the seized material's content.

The Court determined that if Australia were to divulge the seized material to persons involved, on its behalf, in the PCA arbitration or negotiations, then this could have a “very serious detrimental effect” on Timor-Leste's position in the arbitration and future negotiations with Australia (at [42]). Such a disclosure could cause irreparable harm to Timor-Leste's right to conduct arbitral proceedings and negotiations without interference. The Court presumed Australia's good faith compliance with the 21 January 2014 undertaking, but viewed it as an insufficient though “significant contribution” towards mitigating the imminent risk of irreparable prejudice created by the seizure of the materials. The Court stressed that the undertaking envisaged the possibility of making use of the seized material for national security purposes, which could cause the material to fall into the hands of third parties.

While the Court did not order the return of the seized materials, it did order Australia to ensure that the content of the seized materials was not used to Timor-Leste's disadvantage in the ICJ proceedings. The Court also ordered Australia to keep the seized materials under seal until further decision by the Court. Finally, the Court ordered Australia not to interfere with communications between Timor-Leste and its legal advisers in the pending PCA arbitration, as well as any future negotiations regarding maritime delimitation, or other related procedures, including the ICJ proceedings. Australia's Judge ad hoc Callinan was alone in his dissent from all three orders, while Judges Donoghue (United States), Greenwood (United Kingdom), and Keith (New Zealand) only voted against the first two orders.

Though the Court's third order responded to a gap in Australia's undertakings, the same cannot necessarily be said of the Court's first and second orders. Their inclusion in the provisional measures order raises questions whether the Court went further than required. Although Timor-Leste sought Australia's assurance that it would refrain from interfering with Timor-Leste's communications with its legal advisers in the future, none of Australia's undertakings provided such an assurance about its prospective conduct. Thus, the Court's third order appears to be warranted in light of Australia's failure to address this issue in its undertakings.

The first and second orders, however, are arguably unnecessary in light of the final commitment in Australia's undertaking of 21 January 2014, which declares that the Australian Government will not have access to the seized material, or information derived from it, for any purpose related to the ICJ or PCA proceedings, the exploitation of resources in the Timor Sea, or related negotiations. In other words, the Australian Government assured the Court and Timor-Leste that it will not disclose the seized materials to any persons involved in the adjudication, arbitration, or negotiation of disputes with Timor-Leste over the Timor Sea. The Court not only presumed compliance by States, in general, with such undertakings, but it also indicated that in these circumstances, it had no reason to believe that Australia would not abide by its commitments. Yet, the Court's reasoning reveals its latent distrust of Australia's ability to comply with the undertaking, as the Order highlighted the risk that the seized materials could fall into the wrong hands if they were used for national security purposes. The Order suggests that if Australia were permitted to use the seized materials for national security purposes, then this would create an intolerable risk that the materials would be shared or made available to counsel for Australia involved in dispute settlement proceedings with Timor-Leste, whether accidentally or intentionally.

As stressed by Judge Donoghue in her separate opinion, the Court's assessment of this risk may not have taken into consideration the fact that the probability of such an accidental or intentional disclosure of the seized material was remote. While the disclosure of the materials could indeed cause irreparable prejudice to Timor-Leste, the Order omits any examination of the likelihood of such harm occurring. As highlighted by Judge Greenwood, the Order also refrains from engaging in any sort of balancing of Timor-Leste's right to the protection of its communications with counsel, and Australia's right to enforce its national security laws. The Court's apparent distrust of Australia could stem in part from the fact Australia provided the Court with a relatively minimal amount of information about the documents in its possession, possibly due to national security concerns. As acknowledged by Judge Greenwood and Judge ad hoc Callinan, the Court lacked a precise understanding of the documents that Australia has in its possession. This case thus raises questions about how (or whether) the International Court of Justice will grapple with the stress that national security concerns place on the fair administration of justice, as the factual record before the Court will likely remain under-developed during proceedings on the merits.