Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia) - The Court finds that Australia shall ensure that the content of the seized material is not us

INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
Tel.: +31 (0)70 302 2323 Fax: +31 (0)70 364 9928
Website: www.icj-cij.org

Press Release

Unofficial

No. 2014/12
3 March 2014

Questions relating to the Seizure and Detention of Certain Documents and Data

(Timor-Leste v. Australia)

The Court finds that Australia shall ensure that the content of the seized
material is not used to the disadvantage of Timor-Leste

THE HAGUE, 3 March 2014. The International Court of Justice (ICJ), the principal judicial
organ of the United Nations, today issued its Order on the Request for the indication of provisional
measures submitted by Timor-Leste on 17 December 2013 in the case concerning Questions
relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia).
That Request followed the seizure on 3 December 2013 and subsequent detention, by “Agents of

Australia of documents, data and other property which belongs to Timor-Leste and/or which
Timor-Leste has the right to protect under international law”. According to Timor-Leste, the
material seized includes documents, data and correspondence between Timor-Leste and its legal
advisers relating to a pending Arbitration under the Timor Sea Treaty of 20 May 2002 between
Timor-Leste and Australia.

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. - 2 -

Reasoning of the Court

1. Prima facie jurisdiction (paras. 18-21)

The Court notes that Timor-Leste seeks to base the jurisdiction of the Court in the case on
the declaration made by it on 21 September 2012 under Article 36, paragraph 2, of the Statute and
on the declaration made by Australia on 22 March 2002 under the same provision. Considering
that these declarations appear, prima facie, to afford a basis on which it might have jurisdiction to
rule on the merits of the case, the Court finds that it may entertain the Request for the indication of
provisional measures submitted to it by Timor-Leste.

2. The rights whose protection is sought and the measures requested (paras. 22-30)

The Court recalls that its power to indicate provisional measures under Article 41 of the
Statute has as its object the preservation of the respective rights claimed by the parties in a case,
pending its decision on the merits thereof. Therefore, the Court may exercise this power only if it
is satisfied that the rights asserted by the requesting party are at least plausible. Moreover, a link

must exist between the rights which form the subject of the proceedings before the Court on the
merits of the case and the provisional measures being sought.

The Court begins by observing that the principal claim of Timor-Leste is that a violation has
occurred of its right to communicate with its counsel and lawyers in a confidential manner with
regard to issues forming the subject-matter of pending arbitral proceedings and possible future
negotiations on maritime delimitation between Timor-Leste and Australia. The Court notes that
this claimed right might be derived from the principle of the sovereign equality of States, which is

one of the fundamental principles of the international order and is reflected in Article 2,
paragraph 1, of the Charter of the United Nations. More specifically, equality of the parties must
be preserved when they are involved, pursuant to Article 2, paragraph 3, of the Charter, in the
process of settling an international dispute by peaceful means. The Court accordingly considers
that at least some of the rights for which Timor-Leste seeks protection namely, the right to
conduct arbitration proceedings or negotiations without interference by Australia, including the

right of confidentiality and of non-interference in its communications with its legal advisers are
plausible.

The Court then turns to the issue of the link between the rights claimed and the provisional
measures requested. It concludes that a link exists between Timor-Leste’s claimed rights and the
provisional measures sought, since these, by their very nature, are intended to protect
Timor-Leste’s claimed rights to conduct, without interference by Australia, arbitral proceedings

and future negotiations, and to communicate freely with its legal advisers, counsel and lawyers to
that end.

3. Risk of irreparable prejudice and urgency (paras. 31-48)

The Court recalls that, pursuant to Article 41 of its Statute, it has the power to indicate
provisional measures when irreparable prejudice could be caused to rights which are the subject of
judicial proceedings before it. That power will be exercised only if there is urgency, in the sense

that there is a real and imminent risk that irreparable prejudice will be caused to the rights in
dispute before the Court gives its final decision.

The Court is of the view that the right of Timor-Leste to conduct arbitral proceedings and
negotiations without interference could suffer irreparable harm if Australia failed to immediately
safeguard the confidentiality of the material seized by its Agents on 3 December 2013.
In particular, the Court considers that there could be a very serious detrimental effect on
Timor-Leste’s position in the Timor Sea Treaty Arbitration, and in future maritime negotiations - 3 -

with Australia, should the seized material be divulged to any person or persons involved or likely
to be involved in that arbitration or in negotiations on behalf of Australia.

The Court notes, however, that the Attorney-General of Australia gave an undertaking on
21 January 2014 which included commitments to the effect that the seized material will not be
made available to any part of the Australian Government for any purpose in connection with the
exploitation of resources in the Timor Sea or related negotiations, or in connection with the conduct
of the current case before the Court, or of the proceedings of the Timor Sea Treaty Tribunal.
The Court further notes that the Agent of Australia stated that “the Attorney-General of the

Commonwealth of Australia [had] the actual and ostensible authority to bind Australia as a matter
of both Australian law and international law”. The Court considers that, once a State has made
such a commitment concerning its conduct, its good faith in complying with that commitment is
to be presumed. The Court therefore has no reason to believe that the written undertaking of
21 January 2014 will not be implemented by Australia.

The Court nevertheless notes that, in certain circumstances involving national security, the
Government of Australia envisages the possibility of making use of the seized material. The Court

further observes that the commitment of Australia to keep the seized material sealed has only been
given until the Court’s decision on the Request for the indication of provisional measures.
The Court accordingly concludes that, while the written undertaking of the Attorney-General of
21 January 2014 makes a significant contribution towards mitigating the imminent risk of
irreparable prejudice created by the seizure of the above-mentioned material to Timor-Leste’s
rights — particularly its right to the confidentiality of that material being duly safeguarded — it
does not remove that risk entirely.

The Court concludes from the foregoing that the conditions required by its Statute for it to
indicate provisional measures have been met.

*

Composition of the Court

The Court was composed as follows: President Tomka; Vice-President Sepúlveda-Amor;
Judges Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood,
Xue, Donoghue, Gaja, Bhandari; Judges ad hoc Callinan, Cot; Registrar Couvreur.

*

Judge Keith appends a dissenting opinion to the Order of the Court;
Judge Cançado Trindade appends a separate opinion to the Order of the Court; Judge Greenwood
appends a dissenting opinion to the Order of the Court; Judge Donoghue appends a separate
opinion to the Order of the Court; Judge ad hoc Callinan appends a dissenting opinion to the Order
of the Court.

___________ - 4 -

A summary of the Order appears in the document “Summary No. 2014/2”, to which
summaries of the dissenting and separate opinion are annexed. In addition, this press release, the

summary of the Order and the full text of the Order can be found on the Court’s website
(www.icj-cij.org) under “Cases”.

___________

Note: The Court’s press releases do not constitute official documents.

___________

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the establishment of arbitral tribunals and facilitates their work, in accordance with the Hague

Convention of 1899).

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Information Department:

Mr. Andrey Poskakukhin, First Secretary of the Court, Head of Department (+31 (0)70 302 2336)
Mr. Boris Heim, Information Officer (+31 (0)70 302 2337)
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Ms Genoveva Madurga, Administrative Assistant (+31 (0)70 302 2396)