In April last year, East Timor instituted arbitral proceedings against Australia at the Permanent Court of Arbitration (‘PCA’) in relation to a dispute arising under the 2006 Treaty on Certain Maritime Arrangements in the Timor Sea (‘CMATS Treaty’). Timor Leste (as East Timor is formally known) alleges that the CMATS Treaty is invalid because Australia engaged in espionage in the course of negotiating the Treaty. As noted by Matthew Happold in an earlier EJIL:talk! post, Timor Leste has also initiated proceedings against Australia the International Court of Justice in respect of the seizure of documents by Australian authorities from the offices of the Australian lawyer who is acting for Timor Leste in the PCA arbitration. Indeed, the ICJ is holding hearings, this week, on Timor Leste’s request for provisional measures that will require Australia to give up to the custody of the Court all documents and data seized by Australia pending disposal of the ICJ case and to give assurances that ‘it will not intercept or cause or request the interception of communications between Timor-Leste and its legal advisers’.
The details of the arbitration before the PCA have not been made public, so it is difficult to form any clear assessment of the precise international law issues that arise. However, from public statements and media reports, it seems that Timor Leste is alleging that the CMATS is invalid because “Australia did not conduct the CMATS negotiations in 2004 in good faith by engaging in espionage”. According to the lawyer for Timor Leste, during the negotiations for the CMATS Treaty, Australian intelligence services inserted listening devices into the wall of Timor-Leste’s negotiating room under the guise of an Australian aid program concerning renovation and construction of cabinet offices. The lawyer for Timor-Leste has likened the behaviour of the Australian intelligence services to insider trading. The PCA case is particularly interesting as it might be the first case in which a state seeks invalidity of a treaty on the ground that the other treaty party acted fraudulently in the negotiation of the treaty. The case raises the question whether states not only have an obligation to negotiate treaties in good faith but whether breach of the obligation to negotiate in good faith amounts to a ground for invalidity of a treaty.
So, any country looking for an out in any treaty with the USA, the NSA behavior is an easy way…