As has already been reported in this forum, earlier this week the International Court of Justice issued an order indicating provisional measures in Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia). The documents and data in question relate to ongoing arbitral proceedings between Timor-Leste and Australia. The documents were taken from the Canberra-based offices of a legal counsel to Timor-Leste by the Australian Secret Intelligence Organisation (ASIO) under a warrant issued by the Attorney-General of Australia.
On the whole, the order does not appear terribly exciting, but it does raise three issues worthy of some attention.
The first relates to the role of the Attorney-General. The Court, by twelve votes to four, ordered Australia to keep the documents it had seized under seal and not permit them to be used to the detriment of Timor-Leste while proceedings before the ICJ were under way. The Court indicated these measures despite the written undertakings of the Attorney as to the measures the Australian government was taking to safeguard the confidentiality of the documents. (To point out the obvious, this is the very same Attorney-General who authorised the seizure of the documents in the first place.)
While the majority of the ICJ deemed the Attorney-General’s undertakings insufficient, the Court had no difficulty in viewing them as binding under international law. The Court referred in this respect to a statement of the Agent of Australia that “the Attorney-General … [had] the actual and ostensible authority to bind Australia as a matter of both Australian and international law”. In other words, Australia conceded that, as a matter of international law, it was bound by the undertakings of its Attorney-General.
It has required two judgments of the World Court to establish that the unilateral declarations of foreign ministers and heads of State are capable of creating obligations under international law – respectively Eastern Greenland (PCIJ, 1933) and Nuclear Tests (ICJ, 1974). Article 7(2)(a) of the Vienna Convention on the Law of Treaties has codified the presumption that heads of State, heads of government and foreign ministers represent their States by virtue of their function. Apparently, the Attorney-General of the Commonwealth of Australia has now joined this exalted company.
Another issue worth highlighting relates directly to one of the orders made by the Court. During the proceedings, Timor-Leste expressed concern that offices of its legal counsel, from which documents were seized, might be under continuous surveillance, making it impossible for Timor-Leste to conduct confidential communication with its legal counsel. The Court appears to have shared these concerns – to a point. By fifteen votes to one (judge ad hoc Callinan dissenting), the Court ordered that:
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.
Reports in the Australian media suggest that the ICJ “ordered [Australia] to cease spying on East Timor” or that Court “bans Australia from spying on East Timor”. But is that really what the Court did?
Answering this question looks like an exercise in interpretation that would delight first year law students. What is meant by “interfere”? To the extent relevant here, the Oxford English Dictionary states that the verb “interfere” means “to collide or clash, so as to hamper or hinder each other” and “[t]o meddle with; to interpose and take part in something, esp. without having the right to do so; to intermeddle”. Thus, literally, interference in communications appears to mean some kind of a disruption or hampering of communications. Taking a more purposive approach, one might surmise that since the Court was addressing concerns of Timor-Leste as to the integrity of its communications, the word “interfere” should be read broadly to include “intercept”. The difficulty with this line of reasoning is, however, that Timor-Leste specifically requested the Court to seek an assurance from Australia that it would not “intercept or cause or request the interception of communications between Timor-Leste and its legal advisers”. The Court has chosen to use a different word – possibly to secure the concurrence of fifteen judges on the bench. In any event, the Court’s choice of language has introduced a considerable degree of ambiguity into a potentially very significant operative paragraph of the order.
The final point relates to the case more broadly. Australia, having no judge of its nationality on the bench, has exercised its right under the ICJ Statute to appoint an ad hoc judge. The appointee, Ian Callinan, is undoubtedly an experienced jurist, having served on the High Court of Australia, the highest court in the country, for almost a decade. Yet his qualifications in terms of international law are not obvious at all – something that stands in stark contrast to the appointment of Hilary Charlesworth as the Australian ad hoc judge in the Whaling in the Antarctic case. (For the avoidance of doubt, here is no drought of suitably eminent lawyers in Australia who would be experienced in international law. Even if that was the case, other countries have solved such a predicament by appointing a foreign national.)
Moreover, Justice Callinan’s general views on international law are disconcerting. In his 2002 judgment in Western Australia v Ward, his Honour rejected the idea that the common law in Australia ought to develop in harmony with international law. Rather, the “the limit of [the] use” of the “often vague and conflicting” international law is that it “may occasionally, perhaps very occasionally, assist in determining the content of the common law”. In a lecture delivered in 2005, his Honour took issue with “the greater readiness of Australian courts to be influenced in various ways by international instruments and law”.
Such views have obvious appeal to the current conservative Australian government. Consequently, Justice Callinan’s appointment creates an unfortunate appearance of bias. In this instance, the appearance is exacerbated by his Honour’s dissenting opinion which extolls the virtues of Australia as a liberal democracy and its Attorney-General as a “democratically elected senator”, and considers hypothetical challenges to the Court’s jurisdiction which even the counsel for Australia elected not to mount at this stage of the proceedings.
The institution of the ad hoc regularly draws the criticism that it introduces a degree of partiality into judicial proceedings. Appointing ad hoc judges on the basis of the political palatability of their anticipated views lends even more support to this criticism.