Executive Branch Intelligence Surveillance & Privacy

International Court of Justice Bans Australian Spying on East Timor and its Lawyers

Benjamin Wittes
Tuesday, March 4, 2014, 3:15 PM
Speaking of Australian spying on its regional neighbors and its lawyers, which we were the other day, the International Court of Justice has handed down a decision in a dispute between Australia and East Timor.

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Speaking of Australian spying on its regional neighbors and its lawyers, which we were the other day, the International Court of Justice has handed down a decision in a dispute between Australia and East Timor. Here's the Brisbane Times on the decision, which I have not read yet:
Australia has been ordered to cease spying on East Timor and its legal advisers, in a landmark decision by the International Court of Justice relating to a bitter dispute between the two countries over $40 billion of oil and gas reserves in the Timor Sea.
"Australia shall not interfere in any way in communications between Timor Leste and its legal advisers"
The court also ruled that the Australian government must seal documents and data seized in an ASIO raid in December. The ICJ is the United Nations' top court, and its decisions are binding on members. The decision is a major setback for Attorney-General George Brandis, who authorised the raid on East Timor's Australian lawyer Bernard Collaery, where about a dozen agents swooped on his office and took reams of material, including legal documents, electronic files and a statement by a former Australian Secret Intelligence Service agent alleging an eavesdropping operation on the tiny half island nation by Australia. East Timor suspects the ASIO raid last year was only part of a massive espionage campaign against it by Australia as the impoverished nation seeks to have the treaty between the two countries over the Timor Sea reserves declared invalid by an international arbitration tribunal in the Hague because it was not negotiated in good faith.
Here's the decision itself. And here's the ICJ's press release, which is almost as long. Bottom line, according to the release:
In its Order the Court indicates the following provisional measures:
  • it decides, by twelve votes to four, that Australia shall ensure that the content of the seized material is not in any way or at any time used by any person or persons to the disadvantage of Timor-Leste until the present case has been concluded;
  • it also decides, by twelve votes to four, that Australia shall keep under seal the seized documents and electronic data and any copies thereof until further decision of the Court;
  • it further directs, by fifteen votes to one, 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, 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.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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