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Timor Leste’s request for provisional measures: ICJ orders materials seized by Australia sealed until further notice

Published on March 4, 2014        Author: 

On 3 March 2014, the International Court of Justice handed down its order on the request by Timor Leste for the indication of provisional measures in its claim against Australia relating to the seizure and detention of certain documents and data (for earlier reporting of the proceedings: see here). As predicted, Timor Leste didn’t get the seized material back, but the decision of the Court did give it most of what it wanted.

The Court considered that Timor Leste had established jurisdiction prima facie on the basis of the declarations it and Australia had made under Article 36(2) of the Court’s Statute accepting the Court’s compulsory jurisdiction, and that at least some of the rights claimed by Timor Leste were plausible. A concomitant of the principle of the sovereign equality of States was equality between States when in the process of seeking peacefully to settle their disputes, which meant that States have a right of confidentiality and of non-interference in their communications with their legal advisers when engaging in arbitration proceedings or negotiations. The Court also considered that there was a link between the rights claimed and the measures sought by Timor Leste insofar as they sought to prevent interference by Australia with Timor Leste’s communications with its legal advisers.

The major issue before the Court was, however, whether there was a risk of irreparable prejudice to Timor Leste’s rights, and whether such a threat was urgent. Australia’s argument was that there was no such risk. At the commencement of proceedings the Australian Attorney-General had stated that there had been no inspection of the documents and data seized and that they would be held under seal until the beginning of the oral hearings on Timor Leste’s request for the indication of provisional measures. At the oral hearings themselves, the Australian Solicitor-General had assured the Court that the materials would remain under seal until it rendered its decision on the request. Further, a written undertaking of the Attorney-General was presented to the Court stating that until the close of the Court’s proceedings the materials would only be inspected for purposes of national security, and that there would be no communication of them or their contents for any purpose in connection with the exploitation of resources in the Timor Sea or related negotiations, or in connection with the case before the Court or the Timor Sea Treaty Arbitration. Read the rest of this entry…

 

East Timor Takes Australia to ICJ over Documents Seized by Australian Intelligence

Published on December 19, 2013        Author: 

By an application deposited with the International Court of Justice on 17 December 2013 (not yet on the Court’s website), East Timor has instituted proceedings against Australia over the seizure and detention by ‘agents of Australia of documents, data and other property’ belonging to East Timor or which it ‘has the right to protect under international law’.  Simultaneously, East Timor also requested the Court to indicate provisional measures in the case.

The case concerns a search of the Canberra law offices of Mr Bernard Collaery on 5 December by agents of the ASIO (Australian Security Intelligence Organisation) and the removal by them of various documents and electronic devices.  It also appears that at the same time a retired ASIS (Australian Secret Intelligence Agency) officer was also arrested, had his passport confiscated and his premises searched, with documents there also being seized. It was later confirmed by the Australian Attorney General George Brandis that he had approved the warrants under which the searches had been conducted, and that the raids had been carried out ‘to protect national security’.

East Timor and Australia are currently parties to an arbitration administered by the Permanent Court of Arbitration.  On 23 April 2013 East Timor initiated arbitration proceedings under the 2002 Timor Sea Treaty in respect of a dispute related to the 2006 Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS).  The dispute concerns the validity of the CMATS Treaty, with East Timor alleging that ‘Australia did not conduct the CMATS negotiations in 2004 in good faith by engaging in espionage.’ [Few details of the arbitration have been made public (there is no specific mention of it on the PCA’s website) but Mr Collaery is one of East Timor’s lawyers and the retired ASIS officer one of East Timor’s witnesses in the arbitration.  It appears that he was to speak of the bugging of the East Timorese cabinet office during the CMATS Treaty negotiations (see here).

The claim before the ICJ concerns only the search of Mr Collaery’s office.  According to the Court’s press release,  East Timor alleges that during the search ‘documents and data containing correspondence between the Government of Timor-Leste and its legal advisers, notably documents relating to a pending arbitration under the 2002 Timor Sea Treaty between Timor-Leste and Australia’ were seized, in breach of East Timor’s sovereignty and its property and other rights under international law.  It claims the return of the documents and destruction of any copies made of them, as well as just satisfaction in the form of an apology from Australia and the payment of East Timor’s legal costs. Read the rest of this entry…

 

Scottish Independence: Political Rhetoric and Legal Realities

Published on February 16, 2013        Author: 

The recent publication of Professors Crawford and Boyle’s opinion on the international law aspects of Scottish independence is an event not because it says anything new – most commentators (including the present writer) come to the same conclusions – but because it puts the imprimatur of two highly distinguished international lawyers on the matter. On Scottish independence, Scotland would emerge as a new State, with the rump UK (England, Wales and Northern Ireland) continuing the legal personality of the UK. As regards membership of the European Union, this would mean that the rump UK would retain the UK’s membership, whilst Scotland would have to be admitted as a new member.

Nonetheless, although the opinion adds weight to the arguments advanced, it might be thought unlikely to end the controversy, given the political sensitivities involved. Already, nationalist voices have dismissed it as simply the views of two among many commentators, whom of both, moreover, were paid by the British government to provide the advice.

This would be, however, to privilege form over substance. In practice, the two sides have converged in agreeing that negotiations would be required for Scotland to become a Member of the European Union. Read the rest of this entry…

Filed under: States and Statehood
 
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Immunity of Warships: Argentina Initiates Proceedings Against Ghana under UNCLOS

Published on November 20, 2012        Author: 

Another chapter has begun in the saga of NML Capital Ltd’s attempts to collect on its holdings of Argentinean bonds (see here for earlier reporting on EJIL:Talk!) with the initiation of inter-State proceedings by Argentina against Ghana under the 1982 UN Convention of the Law of the Sea.

It will be recalled that on 2 October 2012, whilst on an official visit, the Argentinean naval training vessel the ARA Libertad was arrested in the Ghanaian port of Tema.  Its arrest was ordered by Justice Richard Adjei Frimpong, sitting in the Commercial Division of the Accra High Court, on an application by NML to enforce a judgment against Argentina obtained in the US courts.   The judge considered that the waiver of immunity contained in Argentina’s bond documents (which are at the heart of the dispute with NML) operated to lift the vessel’s immunity from execution. That waiver provides that:

To the extent the Republic [of Argentina] or any of its revenues, assets or properties shall be entitled … to any immunity from suit, … from attachment prior to judgment, … from execution of a judgment or from any other legal or judicial process or remedy, … the Republic has irrevocably agreed not to claim and has irrevocably waived such immunity to the fullest extent permitted by the laws of such jurisdiction (and consents generally for the purposes of the Foreign Sovereign Immunities Act to the giving of any relief or the issue of any process in connection with any Related Proceeding or Related Judgment).

Argentina has strongly resisted this assertion of jurisdiction, claiming that it violates the immunity enjoyed by public vessels, which cannot be impliedly waived.  It appears that the vessel remains under the control of a skeleton crew, who have prevented any efforts by the Ghanaian authorities to move the vessel, whilst being preventing themselves from leaving port.

Both States being parties to UNCLOS, on 29 October 2012 Argentina instituted arbitration proceedings against Ghana under Annex VII UNCLOS (Ghana not having made a declaration under Article 287 UNCLOS: see Article 287(3)).  On 14 November 2012 Argentina applied to the International Tribunal for the Law of the Sea for the prescription of provisional measures prior to the constitution of the Annex VII arbitration tribunal (ITLOS press release here). Argentina may well have the law on its side as regards State immunity for warships.  It may be, however, that ITLOS and an UNCLOS Annex VII arbitral tribunal are not the right fora for the settlement of its dispute with Ghana.

Read the rest of this entry…

 

Scottish Independence and the European Union

Published on October 31, 2012        Author: 

Matthew Happold is Professor of Public International Law at the University of Luxembourg 

Recent events in a number of European States have pushed the issue of secession up the political agenda.  In Catalonia, the ruling Convergencia i Unio party has announced its intention to hold a referendum on Catalan independence if it wins the forthcoming regional elections, despite the Spanish government’s claim that such action would be illegal.  In the United Kingdom, the Westminster and Edinburgh governments have agreed to the holding of an independence referendum in 2014. In neither case, however, does there seem to be a wish to combine independence with an exit from the European Union. The Scottish National Party (SNP), in particular, have long campaigned on the slogan ‘Independence in Europe’, seeking to persuade voters that they can have the best of both worlds: Scottish independence and EU membership.

In recent years, however, the SNP have quietly modified their position.  Instead of arguing that an independent Scotland would automatically be a member of the European Union, it now claims that it is ‘inconceivable’ that it would not become one.  This reflects a hard truth.  Although as a matter of politics, it may seem inconceivable that an independent Scotland -or an independent Catalonia – would not take its place as an EU member; legally there is no automaticity about the matter at all.  Succession to membership of international organisations (which the EU must, for these purposes, be classed as) is governed by international law.  International law provides that membership of international organisations is governed by the rules of each organisation.  And the Treaty on European Union does not provide for succession to membership.

Read the rest of this entry…

 

Julian Assange and Diplomatic Asylum

Published on June 24, 2012        Author: 

Matthew Happold is Professor of Public International Law at the University of Luxembourg and an associate tenant at 3 Hare Court, London .

In taking refuge in the Ecuadorian embassy in London, Julian Assange joins a long list of individuals who have sought asylum in foreign embassies.  Recent examples include Chongqing police chief Wang Lijun in the US consulate in Chengdu, and blind Chinese dissident Chen Guangcheng in the US embassy in Beijing.  However, although embassy premises are legally inviolable, general international law does not recognise a right of diplomatic asylum.  Even if Ecuador does grant Assange asylum, the UK will not be obliged to grant him safe passage out of the country.

In 1949, Victor Raúl Haya de la Torre, leader of the Peruvian APRA movement, sought refuge in the Colombian embassy in Lima.  The dispute between Colombia and Peru as to whether he could be granted diplomatic asylum went twice to the International Court of Justice in The Hague. In its judgment in the Asylum Case, the Court ruled that no general rule in international law existed permitting States to grant diplomatic asylum; a legal basis had to be established in each particular case.  Read the rest of this entry…

 

Some Remarks on Disobeying the Security Council

Published on May 27, 2011        Author: 

Matthew Happold is Professor of Public International Law at the University of Luxembourg.

 I greatly enjoyed Dr Tzanakopoulos’ Disobeying the Security Council.  The book displays a richness of argument backed by a depth of research.  At point after point, I found myself in agreement with the author.  Yet, sympathetic though I am to his approach, I was unable to follow his argument to the end.

In the first two parts of Disobeying the Security Council, Dr Tzanakopoulos examines how the imposition of non-forcible measures under Article 41 of the UN Charter can engage the international responsibility of the United Nations, and how – and by whom – such responsibility is determined.  Some minor points aside, I agree with Dr Tzanakopoulos.  Whatever the situation as regards the implementation of binding resolutions of the Security Council, it seems evident that their promulgation is attributable to the United Nations, of which the Council is one of the principal organs. And absent a few provocateurs, there seems general agreement that the Council’s powers are not unlimited.  Rather, differences exist regarding what the extent of those powers is and who is entitled to determine whether the Council stepped beyond them.  The International Court of Justice seems unable – and has definitely shown itself unwilling – to judicially review Council decisions. Other courts and tribunals apply their own law, whether that is national law or that mandated by their constituent treaty, so in most cases they are not concerned with whether a particular Council resolution is in breach of the United Nations Charter or of general international law.  Indeed, it is usually not the relevant Council resolution that they are reviewing but the act implementing it within their own legal system.  Moreover, only a certain limited class of questions concerning the legal effect of Council resolutions tend to come before national courts, that is, those where resolutions directly affect individual rights.  Hence the concentration of cases on the ‘blacklisting’ of individuals and the freezing of their assets under the sanctions regimes established by Council resolutions 1267 and 1333.

Given this, one can only fall back on the general rule in international law: that States retain the power to auto-determine the legality of measures issued by the Council. It is no more than stating the obvious that UN member States have an entitlement to interpret Security Council decisions.   Interpretation must be undertaken, at least in the first instance, by member States, because it is they who implement Council resolutions and they must ascertain what they are obliged to do in order to do it.  Indeed, to a large extent the distinction between interpretation and determination of one’s legal obligations is a distinction without practical difference. For example, the conclusion of the Organization of the Islamic Conference that paragraph 6 of Security Council resolution 713 (which imposed an arms embargo on the former Yugoslavia) did not ‘legally’ apply to Bosnia-Herzegovina was premised on the view that to interpret the embargo as applicable to Bosnia would render the resolution ultra vires because the Council could not legally prevent a State from seeking to exercise its ‘inherent’ right of self-defence (not un-coincidentally this was the argument put by Bosnia before the ICJ).

However, in the final part of the book Dr Tzanakopoulos argues that when States disobey the Security Council what they are engaging in are countermeasures in response to illegal conduct by the Council. Here the hinge on which matters seem to pivot is Article 25 of the UN Charter, which Dr Tzanokapoulos interprets are making any disobedience of binding Council decisions illegal. Hence, the only way such an illegality can be justified is as a response to another prior illegality, the resolution itself.  I confess to having problems with this characterisation.  Read the rest of this entry…