News: Judge Ad Hoc Callinan and the International Court of Justice

While Russia was busy reminding the world of, among other things, the perennial problems of compliance and enforcement of international law (see the coverage on Opinio Juris here and here), the judges of the International Court of Justice delivered a sharp series of orders against Australia in its ongoing dispute with Timor-Leste before the ICJ. On the bench as Australia’s nominated judge ad hoc — but voting against all three declarations — was former High Court Justice Ian Callinan AC.

On 3 December 2013, ASIO intelligence officers seized documents, data and property located at the ACT offices of Bernard Collaery, a lawyer advising Timor-Leste in its ongoing dispute with Australia at the Permanent Court of Arbitration over a $40 billion oil and gas treaty. Timor-Leste requested that the ICJ make ‘indications of provisional measures’ — roughly equivalent to interlocutory orders in domestic courts. The ICJ will do so where the measure will protect a plausible right which, if not protected, could cause irreparable prejudice to the rights of a party involved in proceedings before it (see art 41 of the Statute of the International Court of Justice). By 12 votes to 4, a majority of the ICJ declared that Timor-Leste’s right to conduct arbitral proceedings without interference by Australia — part of which includes free and confidential communication with counsel — would be irreparably damaged if Australia did not guarantee that under no circumstances would it unseal the seized material. The Court rejected Australia’s claim that undertakings made by Attorney-General George Brandis QC that the documents would not be used ‘for any other purpose other than national security purposes (which include potential law enforcement referrals and prosecutions) ’ (emphasis added), noting that the possibility of use of the material, even in the national security context, gave rise to a sufficiently high risk of disclosure of highly prejudicial information that could not be averted by Australia’s promises of confidentiality and restricted access.

Four judges dissented on these provisional measures, but the Court’s final declaration — that Australia shall not interfere in any way in communications between Timor-Leste and its legal advisers in connection with the ongoing arbitration, future negotiations, or the present ICJ proceedings — was resisted by one dissenter alone: Judge Callinan. Judge Callinan, after raising concerns about double hearsay in media reporting by the ABC and The Sydney Morning Herald on the events, quite briefly stated at [31]:

It would not be reasonable to indicate a further measure or to expect Australia to undertake not to ‘eavesdrop’ on or intercept the communications of Timor-Leste as that would or might suggest that Australia has done so, or will do so in the future, matters that would require cogent and persuasive evidence not produced here. It may also be questioned whether there is a sufficient linkage between the claim in or justiciable in this Court and a provisional measure of that kind.

The Attorney-General’s Department issued a statement indicating that the Government was ‘pleased’ with the decision, which was a ‘good outcome’ for Australia, and that Australia will comply with the provisional measures.

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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.