By Stephen Tully -
Snapshot
- In the case of Timor-Leste v Australia the International Court of Justice ordered Australia to ensure the correspondence it seized between Timor-Leste and its legal advisers relating to a pending arbitration under the Timor Sea Treaty between Timor be kept under seal and not used to Timor-Leste’s disadvantage until proceedings in the ICJ were concluded
- The right of a state to a confidential relationship with its legal advisers, in particular within the dispute settlement context, appears to have been accepted by the court. A national security exception to legal professional privilege is less clear under international law
- Oral proceedings that were due to commence before the ICJ on 17 September have been adjourned to enable Australia and Timor-Leste to seek an amicable settlement. Whatever its terms, the settlement will lift the provisional measures order and untie Australia’s undertakings
In the Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia), Request for the Indication of Provisional Measures order of 3 March 2014, the International Court of Justice (ICJ), by majority, indicated provisional measures against Australia. Australia was required to ensure that content seized from the business premises of its legal adviser in Canberra was not in any way or at any time used by any person to Timor-Leste’s disadvantage until proceedings were concluded. The ICJ ordered that Australia keep the seized documents and electronic data and any copies thereof sealed until a further decision. This note identifies the factual background, principal contentions and salient judicial dicta. A settlement now appears likely. Nevertheless, two implications of these proceedings are noteworthy: the existence and scope of legal professional privilege under international law, including whether there is a national security exception; and the sceptical treatment afforded by the ICJ to the unilateral undertakings offered by Australia.
