GOVERNO
REPÛBLICA DEMOCRATICA DE TIMOR-LESTE
PROVISIONALMEASURESREQUEST. Page 1 of6 INTERNATIONAL COURT OF JUSTICE
REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES
SUBMITTED BY THE GOVERNMENT OF TIMOR-LESTE
I. INTRODUCTION
1. I have the honour ta refer ta the Application submitted ta the Court this day
instituting proceedings in the narnee Republica Democraticade Timor
Leste ('Timor-Leste') against the Commonwealth of Australia ('Australia'),
andta submit, in accordance with Article 36(1) and Article 41 of the Statute of
the Court and Articles 73, 74, 75 and 78 of the Rules ofthe Court, an urgent
request that the Court indicate provisional measureseserve the rights of
Timor-Leste under international law pending the determination of the issues
raised by the Application.
II. CIRCUMSTANCES REQUIRING THE INDICATION OF PROVISIONAL
MEASURES OF INTERIM PROTECTION
2. The facts underlying this request are set forth in the Application and, in
summmy, are as follows. On 3 December 2013 officers of the Australim1
Security Intelligence OrganisationIO), acting under wanants issued by
the Attorney-General of Australia attended an office/residence in Canberra at
5Brockrnan Street, Narrabundah, in the Australian Capital Territory, Australia
and seizedocuments, data and other property which belong ta Timor
Leste and for which Timor-Leste has the right ta protect under
internationallaw ('the documents and data') from those premises. The
owner of the above-mentioned office/residence is Legal Adviser ta and a
Legal Representative the Government of East Timor.
3. The seized documents and data include inter alia, documents and data
containing conespondence between the Government of Timor-Leste m1dits
PROVISIONAL MEASURESREQUEST. Page 2 of6 Legal es, among them documents relating to the conduct of the pending
Arbit:rationunder the Timor Sea Treaty between Timor-Leste andAustralia.
4. The seized documents and data are believed to be currentlythe possession
of Australia.
lll. THE CONSEQUENCES SOUGHT TO BE AVOIDED BY
PROVISIONALMEASURES
5. The abjects of this request are (i) to protect the rights of Timor-Leste in the
documents and data seized, and (ii) to prevent their use by Australia contrary
to the rights and interestsof Timor-Leste, and (iii) to end the unlawful
impediment to the conduct by Timor-Lestef its affairs caused by the seizure
and detentionf the documents and data, in particular (but not exclusively) in
relation to the conduct of the pending Arbitration under the Timor Sea Treaty
between Timor-Leste and Australia ('the Arbitration').
6. It is Timor-Leste's concern that Australia will, by inspecting the seized
documents and data, (a) infonn itself of privileged advice given to Timor
Leste by its advisers concerning the Arbitration, andr-Leste's position
in relation to that Arbitration, (b) inform itself of privileged advice given to
Timor-Leste by its advisers concerning other matters relating to the Timor Sea
and its resources andf Timor-Leste's position in relation to those matters,
and (c) inform itselfother matters confidential to Timor-Leste treated in the
documents and data. Further, having so inforrned itself, Australia will have
wealŒned irreversibly the position of Timor-Leste in relation to the
Arbitration and to other matters to which the documents and data relate, to the
detrimentof Timor-Leste and the advantage of Australia.
7. Timor-Leste is also gravely concerned that, the seizure of the documents and
data having been effected purportedly for reasonsof Australia's national
security, it is not credible that communications with the legal adviser from
PROVISIONAL MEASURES REQUEST. Page 3 of6 whose premises the documents were seized are not under continuing
surveillance by Australian Government agencies, and that it is accordingly
impossible for Timor-Leste to conduct confidential communications with its
legal advisers, eithern relation to the Arbitration or in relation to other
matters.
8. Timor-Leste is also concemed that, without knowledge of the extent to which
Australia has already disclosed to third parties infmmation obtained by
Australia from the documents and data, Timor-Leste is unable to take effective
action to minimize the harm causedy any such disclosure.
IV. THE REASON FOR URGENCY
9. Timor-Leste requested the retum of the documents from the Australian
Government on 10 December 2013, but they have not been retumed. The
evident risk is that the papers will be inspected and copied and that Australia
will acquire confidential information that it will in practice thereafter be free
to use for its own advantage and to the disadvantageTimor-Leste, and that
Australia may pass such infmmation to third parties. Further, Timor-Leste's
ability to prepare for the pending Arbitration is materially impaired.
V.MEASURESREQUESTED
10. Accordingly, Timor-Leste respectfully requests that the Court indicate the
following provisional measures:
a. That ali of the documents and data seized by Australia fi·om 5
Brockman Street, Narrabundah, in the Australian Capital Te1Titoryon
3 December 2013 be immediately sealed and delivered into the
custody ofthe International Comi of Justice.
PROVISIONAL MEASURES REQUEST. Page 4 of6 b. That Australia immediately deliver to Timor-Leste and to the
International Courtof Justice (i) a list of any and ali documents and
datathat it has disclosed or transmitted, or the information containedin
which it has disclosed or transmitted to any persan, whether or not
such persan is employed by or holds office in any organ of the
Australian State orof any third State, and (ii) a list of the identities or
descriptionsof and CUITen ptositions held by such persans.
c. That Australia deliver within five days to Timor-Leste and to the
International Court of Justice a list of any and all copies that it has
made of any of the seized documentsand data;
d. That Australia (i) destroy beyond recovery any and ali copies of the
documentsand data seized by Australiaon 3 December 2013, and use
every effort to secure the destruction beyond recovery of ali copies
that it has transmitted to any third party, and (ii) inform Timor
Leste and the International Court of Justice of ali steps taken in
pursuance ofthat arder for destruction, whether or not successful.
e. That Australia give an assurance that it will not intercept or cause
or request the interception of communications between Timor
Leste and its legal advisers, whether within our outside Australia
or Timor-Leste.
11.Timor-Leste also respectfully requests that, pending the hearing·and decision
of the Court on this request for provisional measures, the President exercise
his power under Aliicle 74(4) ofthe Rules ofthe Court to caUupon Australia:
(i) immediately to deliver to Timor-Leste and to the
International Court of Justice a list of each and every
document and file containing electronic data that it seized
from 5 Brockman Street, NaiTabundah, in the Australian
CapitalTeiTitory,on 3December2013;
(ii) immediate!y to seal the documents and data [and any and ail
copies thereof];
(iii) immediately to deliver the sealed documents and data [and
any and all copies thereof] either to the Cami or to 5
PROVISIONAL MEASURES REQUEST. Page 5 of6 Brockman Street, Narrabundah, in the Australian Capital
Territory; and
(iv) not to intercept or cause or request the interception
communications between Timor-Leste (including its Agent
HE Joachim de Fonseca) and its legal advisers in relation to
this action (DLAiper, Sir E Lauterpacht QC and Vaughan
LoweQC).
12. In viewf the gravity and urgency of the situation caused by the actions taken
by Australia, Timor-Leste further respectfully requests that the Court set a
hearingon this Request at the earliest possible date.
17 December 2013
Respectfully submitted,
p
--
Agent for Timor-Leste
Embassy ofthe Republica Democratica de Timor-Leste
4 Beauchamp Road
London SW111PQ
United Kingdom
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Request for the indication of provisional measures