Everyone does it and in any case, there’s nothing anyone can do about it (crosspost from Crooked Timber)

The general reaction to various revelations of spying by the US on its friends and allies, particularly in contexts such as trade negotiations has been “everyone does it” and “in any case, there’s nothing anyone can do about it”. And, as regards direct retaliation against the US, that’s pretty much right. The situation is a bit different for junior members of the Five Eyes[^1], such as Australia. A case now being heard at the Permanent Court of Arbitration in The Hague could set a precedent that will make such spying a high risk exercise.

The background is a 2004 treaty between Australia and East Timor over the division of oil and gas reserves. It’s now come out, via a whistleblower, that while generously building a cabinet room for the new East Timorese government, the Australian government took the opportunity to bug it, thereby gaining a negotiating advantage. East Timor is seeking nullification of the agreement.

IANAL, but the case seems unanswerable. This would be criminal conduct in a commercial negotiation just about anywhere. But, leaving aside the legalities, it’s hard to imagine a more sympathetic plaintiff or a less sympathetic defendant. East Timor is one of the poorest countries on the planet, heavily dependent on Australia. Even in Australia at the time, and without any knowledge of the commercial espionage behind it, the agreement was widely criticised as unfair. Since then, the Foreign Minister at the time, Alexander Downer, has set up a consulting firm which has, as a major client, Woodside Petroleum, the main beneficiary of the deal. And, just the other week, Australian police raided the office of the Australian lawyer acting for East Timor, and cancelled the passport of the key witness.

In these circumstances, an Arbitration Court that found in favor of Australia might as well make a public declaration that it is for sale to the highest bidder. Whatever contortions of legal reasoning the Australian lawyers might come up with are unlikely to convince anyone except other lawyers.
In the face of what looks like certain defeat, I’d expect the Australian government to settle out of court. But even that would be enough to expose every commercial agreement negotiated by a Five Eyes country to legal challenge, not to mention any other governments caught engaging commercial espionage in international negotiations.

There is every reason to expect more whistleblowers. While the unnamed whistleblower in this case, like Snowden and Manning, appears to have acted out of moral repugnance at his government’s actions against a desperately poor country, many more might come forward if enough money was on offer. And, in the context of international trade negotiations, the leverage provided by a threat to revoke earlier agreements could be huge.

[^1]: As an aside, the Anglocentrism of the Five Eyes arrangement is striking in itself and as a demonstration of the fact that the security state is effectively independent of the rest of the government, and even of the military. New Zealand has remained a Five Eyes member in good standing since 1945 even though defense co-operation with the US was suspended for decades over NZ refusal to accept visits from nuclear armed and powered warships.

26 thoughts on “Everyone does it and in any case, there’s nothing anyone can do about it (crosspost from Crooked Timber)

  1. Perhaps our ASIS spying should be directed at match-fixing of cricket matches, especially international matches. We could offer to renovate the change rooms and club rooms of certain cricket-mad nations, as a charity work of course, and we’d be in.

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