Corrigé
Corrected
CR2014/3
International Court Cour internationale
of Justice de Justice
THE HAGUE LAHAYE
YEAR2014
Public sitting
lzeld on Wednesday 22 January 2014, at 10 a.m., at tite Peace Palace,
President Tomka presiding,
in tite case concerniQuestions relating to the Seizure and Detention
of Certain Documents and Data
(Timor-Leste v. Australia)
VERBATIM RECORD
ANNÉE2014
Audience publique
tenue le mercredi 22janvier 2014, à 10 !teures, au Palais de la Paix,
sous la présidencedeM. Tomka, président,
en l'affaire relatàvdesQuestions concernant la saisie et la détention
de certains documents et données
(Timor-Leste c. Australie)
COMPTE RENDU -6-
Present: President Tomka
Vice-President Sepùlveda-Amor
Judges Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Xue
Donoghue
Gaja
Bhandari
Judges ad hoc Callinan
Cot
Registrar Couvreur - 3-
Présents: M. Tomka, président
M. Sepulveda-Amor, vice-président
MM. Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
MmesXue
Donoghue
M. Gaja
M. Bhandari, juges
MM. Callinan
Cot, jugesad hoc
M. Couvreur, greffier -4-
The Government of Timor-Leste is represented by:
H.E. Mr. Joaquim A.M.L. da Fonseca, Ambassador of the Democratie Republic of Timor-Leste to
the United Kingdom,
as Agent;
H.E. Mr. JoséLuis Gutteres, Minister for Foreign Affairs and Co-operation;
H.E. Mr. Nelson dos Santos, Ambassador of the Democratie Republic of Timor-Leste to the
Kingdom ofBelgium and the European Union;
*
Sir Elihu Lauterpacht, C.B.E., Q.C. Honorary Professor of International Law, University of
Cambridge, member of the Institut de droit international, member of the English Bar,
Mr. Vaughan Lowe, Q.C., Emeritus Professor of International Law, University of Oxford, member
ofthe English Bar,
Sir Michael Wood, K.C.M.G., Member of the International Law Commission, member of the
English Bar,
as Counsel and Advocates;
Ms Janet Legrand, Partner, DLA Piper UK LLP,
Ms Emma Martin, Associate, DLA Piper UK LLP,
Ms Jolan Draaisma, Senior Associate, Collaery Lawyers,
!)P\..; \.
Mr. Andrew Legg, IPIT::Bm.ember of the English Bar,
as Counsel;
as Junior Counsel;
Mr. Bernard Collaery, Principal, Collaery Lawyers,
as Advisor. - 5 -
Le Gouvernement du Timor-Leste est représentépar :
S. Exc. M. Joaquim A.M.L. da Fonseca, ambassadeur de la République démocratique du
Timor-Leste auprès du Royaume-Uni,
comme agent ;
S. Exc. M. JoséLuis Guterres, ministre des affaires étrangères et de la coopération de la
République démocratique du Timor-Leste ;
S. Exc. M. Nelson dos Santos, ambassadeur de la République démocratique du Timor-Leste auprès
du Royaume de Belgique et de l'Union européenne ;
*
sir Elihu Lauterpacht, C.B.E., Q.C., professeur honoraire de droit international à l'Université de
Cambridge, membre de l'Institut de droit international, membre du barreau d'Angleterre,
M. Vaughan Lowe, Q.C., professeur éméritede droit international à l'Université d'Oxford, membre
du barreau d'Angleterre,
sir Michael Wood, K.C.M.G., membre de la Commission du droit international, membre du barreau
d'Angleterre,
comme conseils et avocats ;
Mme Janet Legrand, associéeau Cabinet DLA Piper UK LLP,
Mme Emma Martin, collaboratrice au Cabinet DLA Piper UK LLP,
Mme Jolan Draaisma, collaboratrice principale au Cabinet Collaery Lawyers,
M. Andrew Legg, Ph.D., membre du barreau d'Angleterre,
comme conseils;
M. Andrew Sanger, Lauterpacht Centre for International Law de l'Université de Cambridge,
M. Eran Sthoeger, LL.M, Facultéde droit de l'Universitéde New York,
comme conseils auxiliaires;
M. Bernard Collaery, associéprincipal, Cabinet Collaery Lawyers,
comme conseiller. -6-
Tite Government of Australia is represented by:
Mr. John Reid, First Assistant Secretary, International Law and Human Rights Division,
Attorney-General's Department,
as Agent;
H.E. Mr. Neil Mules, A.O., Ambassador of Australia to the Kingdom of the Netherlands,
as Co-Agent;
Mr. Justin Gleeson, S.C., Solicitor-General of Australia,
Mr. James Crawford, A.C., S.C., F.B.A, Whewell Professor of International Law, University of
Cambridge, member of the Institut de droit international, Barrister, Matrix Chambers, London,
Mr. Bill Campbell, Q.C., General Counsel (International Law), Attorney-General's Department,
Mr. Henry Burmester, A.O., Q.C., Special Counsel, Australian Government Solicitor,
as Counsel and Advocates;
Mr. Chester Brown, Professor of International Law and International Arbitration, University of
Sydney, Barrister, 7 Selbo}!(rnChambers, Sydney, and Essex Court Chambers, London,
Mr. Rowan Nicholson, Barrister and Solicitor, Supreme Court of South Australia, Research
Associate, Lauterpacht Centre for International Law, University of Cambridge,
as Counsel;
Ms Camille Goodman, Principal Legal Officer, Attorney-General's Department,
Ms Stephanie Ierino, Senior Legal Officer, Attorney-General's Department,
Ms Amelia Tetee, Senior Legal Officer, Attorney-General's Department,
Ms Esme Shirlow, Acting Senior Legal Officer, Attorney-General's Department,
McToôd-Quimr;FirsrSecretary, Emoassy ofAustraliainttie Kingdom ofthe Netherlan:âs,
Mr. William Underwood, Third Secretary, Embassy of Australia in the Kingdom of the
Netherlands, ·
as Advisers;
Ms Natalie Mojsoska, Administration Officer, Attorney-General's Department,
as Assistant. -7-
Le Gouvernement de l'Australie est représentépar:
M. John Reid, premier secrétaireadjoint, division du droit international et des droits de l'homme,
services de 1'Attorney-General,
comme agent ;
S. Exc. M. Neil Mules, A.O., ambassadeur d'Australie auprèsdu Royaume des Pays-Bas,
comme coagent ;
M. Justin Gleeson, S.C., Solicitor-General d'Australie,
M. James Crawford, A.C., S.C., F.B.A., professeur de droit international à l'Université de
Cambridge, titulaire de la chaire Whewell, membre de l'Institut de droit international, Barrister,
Matrix Chambers (Londres),
M. Bill Campbell, Q.C., General Counsel (droit international), services de l'Attorney-General
d'Australie,
M. Henry Burmester, A.O., Q.C., Special Counsel, Solicitor du Gouvernement australien,
comme conseils et avocats ;
M. Chester Brown, professeur de droit international et d'arbitrage international à l'Universitéde
Sydney, Barrister, 7 Selborne Chambers (Sydney) et Essex Court Chambers (Londres),
M. Rowan Nicholson, Barrister et Solicitor près la Cour suprême de l'Australie-Méridionale
(Supreme Court of South Australia), attaché de recherche· au Lauterpacht Centre for
International Law de l'Universitéde Cambridge,
comme conseils ;
Mme Camille Goodman, juriste principal, services de l'Attorney-General,
Mme Stephanie Ierino,juriste hors classe, services de l'Attorney-General,
Mme Amelia Telec,juriste hors classe, services de l'Attorney-General,
Mme Esme~Shirlow, jurrclsseepar intérim,services de l'Attorney-General,
Mme Vicki McConaghie, conseiller juridique, services de l'Attorney-General,
M. Todd Quinn, premier secrétaire,ambassade d'Australie au Royaume des Pays-Bas,
M. William Underwood, troisièmesecrétaire,ambassade d'Australie au Royaume des Pays-Bas,
comme conseillers ;
Mme Nathalie Mojsoska, administrateur, services de l'Attorney-General,
comme assistante. - 8 -
The PRESIDENT: Good morning. Please be seated. The sitting is now open. The Court
meets this morning to hear the second round of oral observations of Timor-Leste on its Request for
indication of provisional measures. Let me immediately cali upon Sir Elihu Lauterpacht. You
have the floor, Sir.lease.
Sir Elihu LAUTERPACHT: Thank you, Mr. President, Members of the Court. 1am sorry
not to be able to provide the Court with a written text of what 1am about to say. However, 1have
no doubt that the Court's excellent interpreters, to whom we are much indebted for their admirable
work, will be able to cape with it. They will have no problem in following me.
Mr. President, Members of the Court, it is obviously a cause of regret to me that 1 should
have caused offence to the Government of Australia and to my former colleagues. If I may have
sounded harsh, there was no intention to hurt; but the ward "inexplicable" was the only ward 1
could think of to describe the what and the why and the when of the seizure of the property in
Canberra - property belonging to the Government of Timor-Leste. And it is only yesterday
morning that there has been an attempt by Australia to justify it in a specifie and a comprehensible
manner. 1 just refer to a couple of passages in the speech of the learned Solicitor-General at
paragraphs 38-40 (CR2014/2):
"Australia is entitled", he said, "to have a legitimate concern that a former
officer of one of its intelligence agencies may have disclosed and may threaten to
further disclose national securitynformation";
··c··n·dii..hich•.is.likelytoconstituteaserioiis~·crimirüil··offence··under.:tne•A.ustralianlegislation:~~=•······
Australia is further entitled to be concerned that "Timor-Leste [is] encouraging the commission of
[such] crime[s]" under Australian law. And he then continued: "To place classified information in
the hands of a foreign State is a serious wrong for Australia, as it would be for any nation." And
lastly, he says:
"The true abject of [Timor-Leste's] Request for provisional measures [is] to
prevent Australia from taking steps properly available under [its] domestic law to
protect [itself] from a threat to securitposed by a disaffected former officer."
Now Timor-Leste will be the first to acknowledge the right of a State to protect itself. But
certain questions remain. From what? Protect itself:from what? By what means? And when? -9-
As to "from what?": is it protecting itself from the likely revelation that Australia's security
seriously and illegally entered Timor-Leste under false pretences? Then surreptitiously placed
deviees in the government offices of Timor-Leste, eavesdropped, and extracted information to
which they were not entitled? And which we are bound to presume facilitated their own thinking.
So, Australia does not want the details of this publicly revealed and threatens action against the
ex-officer who is blamed for the revelation of this perfidy.
"By what means?": to seize possibly incriminating materials from the premises of a lawyer
in Australia, materials belonging to Timor-Leste and held on its behalfby the lawyer.
"And when?": when the lawyer was out of his office, out of the country.
So "why now?": only because Australia has become aware of the prospect that the material
involved might somehow be used against it in the arbitration proceedings. Or because it wished to
cause apprehension in those who might give evidence against it in the arbitration proceedings.
And did Australia even consider that the documents might belong to its neighbour,
Timor-Leste? The Court has not beard a ward denying Timor-Leste's ownership of the material.
Australia has chosen to treat the material as if it were ordinary - and I use an adjective they
employed- commercial material, beneficially owned by the lawyer concerned. It has not said
anything to deny Timor-Leste's ownership. Australia denies Timor-Leste's entitlement to the
protection of its property. It argues that for Timor-Leste to claim title to material in Australia is a
new form of claim to extra-territorial jurisdiction. Nothing of the kind. Property ownership is
property ownership. Not to be confused with any recognized form of extra-territorial jurisdiction.
State property cannat be seized or interfered with. It is the immunity attaching to such
property in the hands of an agent that we are concerned about. No Jossof title, but it is simply in
the custody of a persan acting on their behalf.
No ward was said in reply to the authorities cited by Timor-Leste like the Rahimtoola case,
the Cristina and Ysmael cases- ali decisions of either the House of Lords, or the Privy Council or
the Court of Appeal in which recognition was given to the title of the State in the property held by
the agent. No ward was said about, for example, the precedent of the United Kingdom recently in
protesting against the Spanish seizure of papers in Spain. 1likened the seizure to taking by a State
of part of its neighbour's territory, and 1wish to emphasize that there is no difference between the - 10-
taking of territory and the taking of property- that is only a matter of size, not of quality. A
taking is a taking. Now ali of Australia's position appears to rest on the invocation by Australia of
the possibility of recourse to Australian domestic legal procedures. No answer is made to
Timor-Leste's submission that the exhaustion of local remedies is not relevant to this matter. We
have given the Court authorities likeAvena, the Corfu Channel, and so on. But no answer is given
to their invocation.
Now, Australia complains in passing of the failure or lack by Timor-Leste to file written
observations prior to this hearing, as Australia did. There must be sorne misunderstanding.
Australia put the failure in tennsof a failure to respond to an invitation by the Court. There was no
such invitation. I cannot find any reference to such a possibility in the Court's Statute or Rules, nor
amongst our papers is there a copy of any invitation. Timor-Leste is certainly grateful to Australia
for its own Written Observations, but they fail to deny Tirnor-Leste's ownership and they repeat the
constant reference to local remedies available in Australia.
But there is no way in which Timor-Leste can be criticized for not having put into writing
our own written observations. One needs only to recall the fact that the Application instituting
proceedings in the case was made on 17 December and that it was followed on the same day by the
R. ~.t.::.\.--
\ApplioatteM for provisional rneasures. No invitation carne from the Court to supplement that
request.
Nor is it necessary for Timor-Leste to anticipate this week's proceedings. It is sufficient that
Timor-Leste's case is stated in front of you, Mr. President and Mernbers of the Court, yesterday
There was a certain reference in the Australian contribution to balancing of interests. Now,
in advancing balancing of interests, Australia place ali the ernphasis on its interests. It seerns to
disregard Timor-Leste's interests, but they cannot be disregarded. Timor-Leste has a security
interestof a very specifie kind, narnely, the protection of the privacy of its internai government
discussions.
Australia rnakes indirect threats airned at witnessK, and even at Mr. Collaery. In so doing it
fails to take into consideration two items of prospective prosecution. First, if the crirninal law
enforcernent authorities in Australia adopt what I rnight cali an even-handed approach, the - 11-
possibility of prosecution in Australia of persans concerned with ordering or administering the
activities which are themselves a violation of Australian law, that needs to be taken into account.
And against this there is a possibility that the prosecution can be started in Timor-Leste against
those responsible for the initiation of the interceptions in the Government's offices. Such
proceedings, under Timor-Leste's criminallaw, obviously would take place in the Timorese courts,
but they would be entitled to seek the assistance of the Australian authorities in presenting the
accused for trial.
The significance of the latest undertaking by the Attorney-General needs to be mentioned.
Only now does it extend to maritime delimitation matters. I mean no disrespect to the Australian
Attorney-General when I say that his undertaking should be backed up by an order of the Court that
deals with the treatment of the materials.
I come now, Mr. President, to my concluding point. I am fortunate in having the benefit of
knowledge ofwhat Sir Michael Wood will say, and he will cover quite a number of other.points. 1
know that Latin is not the favoured language of Australia. Even so it would be better if Australia
were to say culpa mea maxima culpa and thus admit its blameworthiness now. By so doing, it
could put this who le sorry affair behind us. Let Australia restore the materials forthwith and, in the
Arbitration, incidentally, accept that the CMATS Treaty never properly came into existence.
Australia has it in its power to restore a proper basis for the maintenance and improvement of
friendly relations between the Parties.
Mr. President, that is ail that 1 wish to offer the Court. 1 respectfully ask you to cali on
Sir Michael Wood. I thank you very much for allowing me to speak and 1need hardly say that it is
with the greatest displeasure that I leave you now. Thank you, Mr. President.
The PRESIDENT: Thank you very much, Sir Elihu. Now I cali upon Sir Michael Wood to
continue in presenting observations of Timor-Leste. - 12-
Sir Michael WOOD:
APPLICATION OF THE LAW AND PRACTICE ON PROVISION AL MEASURES
1. Mr. President, Members of the Court, 1 shaH respond to what the Australian side said
yesterday concerning the conditions for the indicationisional measures. But 1should Iiketo
begin by quotinl(gs Sir Eli has just done, the Solicitor-General, Mr. Gleeson. At paragraph 39 of
his speech he said this:
"11...::.~
"~ disclosures threaten our security interests. The security interests are broader
than the fatef the Arbitration. To place classified information in the hands of a
foreign State a seriaus wrong to Australia, as it ltQany nation."
wa~
Quite. And to seize classified information from Timor-Leste is a serious wrong, as it would be to
any nation.
2. Mr.President, I would Iike to turn first to Judge Cançado Trindade's question, which was
putto both Parties. The question read:
"What is the impact of a State's measures of a11egednational security upon the
conductionof arbitral proceedings between the PartiIn particular, what is the
effect or impact seizure of documents or data, in the circumstances of the present
case, upon the settlement of an international dispute by negotiation and arbitration?"
3. 1 shatryto answer that question, both as a matter of principle, and as it applies to this
case, but the short answer that the seizure of documents makes the settlement of international
disputes much more difficult. Trusts !ost, relations are poisoStates should refrain from
a11owingnational interests, including national security interimportant though they may
····---·····&····•····•a:crto ···ëïa·iTëcFifitërriatlü.iiar·rrücëeëlliigs=-a IJJetwtëe~n~s·ûv·ërë·lg.·
sovereign States to obtain legal adviceNothing should be done which would infringe the
principlesof the sovereign equality of States, non-intervention, and the peaceful settlement of
disputes, provided for in Article 2.3 of the United Nations Charter. These are at the core of the
-- ---- ---·--------
international legal arder as reflected in the Charter and other key documents, such as the Friendly
Relations Declaration'.
1A/RES/25/2625, Declaration on Principles oflnternational Law concerning Friendly Relations and Co-operation among
States in accordance with the Charter of the United Nations, 24 October 1970. - 13-
4. Applying this to the case in hand, we look to the Court to ensure that Australia does not
secure unfair advantage, either in the context of litigation or, more broadly, in the context of the
Timor Sea.
5. Both Parties seem to agree that legal privilege is a general principle of law, and is not
without limitations, but the Parties seem to disagree on the scope of these limitations. In response
to Judge Cançado Trindade's question, I would point to the difference between such limitations
under domestic law, as argued for by Australia, and limitations under international law. The
domestic limitations argued for by Australia should not apply when a sovereign State seeks legal
advice. Australia is not entitled to restrict Timor-Leste's ability freely to communicate with its
lawyers. There is no limit on immunity in respect of diplomatie documents on Australian soil;
there is no reason of principle why the same should not apply to a State's claim to privilege in
respect of legal advice.
6. In any case, any assertion of a limitation on privilege should not hinder Timor-Leste's
preparations for international proceedings or negotiations. This principle was expressly recognized
in the Libananco casé. Contrary to what Mr. Burmester said yesterdal, recognition of this
princip le should not preelude Australia from continuing any criminal investigation; it would just
ensure that Timor-Leste's documents remain inviolable notwithstanding that process.
7. Mr. Campbell began by asking you to keep in mind the alleged general principles applying
to provisional measures set out in Australia's Written Observations 4• As we made clear yesterday,
we do not regard as convincing what they had to say on these matters. The Written Observations
take a very restrictive view of provisional measures. Yet the institution of provisional measures is
essential to the judicial process. Its importance is increasingly recognized by international courts
and tribunats. Of course, like any judicial process, it can be abused, but courts know how to deal
with that. Mr. President, we reject any insinuation by Australia that Timor-Leste is acting
abusively in seeking provisional measures. In particular, we reject the unworthy suggestion by
Professor Crawford that Timor-Leste is using these proceedings "to skirt around the confidentiality
2Libananco Holdings Co. Limited v. Republic of Tw·key, !CSID Case no. ARB/06/8, Decision on Prelimina1y
Issues,23 June 2008, p. 42, para. 1.2
3
CR 2014/2, p. 32, para. 17 (Burrnester).
4
CR 2014/2, p. 21, para, 3 (Campbell). - 14-
provisions of the Arbitral Tribunal and maximize the opportunity for publicity and comment
prejudicial tostrali•" We are not. You only have to look at the terms of our letter of
16January, in response to Australia's requests concerning confidentiality, to see that that is not the
case.
(a) Prima faciejurisdiction
8. Mr. President, the Court has been placed in a rather awkward position by Australia's
attitude to prima faciejurisdiction. Yesterday, Mr. Campbell said:
"while Australia may weil contest the jurisdiction and admissibility of Timor-Leste's
Application commencing ... proceedings at the merits phase, or earlier, [we hope not]
it will not be raising those matters in relation to Timor-Leste's Request for provisional
6
measures"•
Yet, Mr. President, the Court needs to satisfy itself that it has prima facieSourisdiction.
Australia's attitude is quite unhelpful, if not disrespectful.
9. Professor Crawford, at paragraph 22 of his speech, hinted that the present proceedings
might- I say "might" because he did not develop the pbe caught by excepti(a)in
Australia's Optional Clause declaration: "any dispute in regard to which the parties thereto have
agreed or shall agree to have recourse to sorne other methodful settlement". That is
far-fetched; the two cases, before the Arbitral Tribunal and before this Court, are entirely distinct.
We do not believe that thereny reason for the Court not to conclude that it has at least prima
faciejurisdiction.
10. Before leaving Professor Crawford's statement, let me say that I found his attempt to
--------~ -show.that-our- .concerns--about--the--documents~did~not---go--beyond--the~Arbitration~wholly~--------~----·
unconvincing. He none too subtly emphasized sorne words in certain documents and tried to "skirt
around",o use his expression, others which made clear the scope of our concerns. His assertion
that it is difficult pr~~ie~s-~bout d~oceulls l~!n~~s_~ove vvid~rmatters than tlle
7
negotiations, because they are currently under embargo pretty unconvincing. In many
CR 2014/2, p. 39, para. 8 (Crawford).
CR2014/2, p. 21, para. 3 (Campbell).
7
CR 2014/2, p. 41, para. 16 (Crawford). - 15 -
cases it is perfectly clear, as we showed on Monday. LPP005, for example, is entitled
"Correspondence to Lowe Q.C. re: Timor Sea maritime boundary issues".
(b) The rights wlwse protection is sought and the measures requested
11. We dealt at sorne length on Monday with the rights under international law that are at
issue in this case. Australia has skirted around most of the points we made.
12. Mr. President, Australia Iikes to exaggerate! As Sir Elihu has just pointed out, Australia
accused Timor-Leste- yesterday of creating a "new form of extra-territoriality", which
8
amounts, as they said, to a "quantum Ieap in the expansion of public international Iaw'; . They
9
have said that we claim an "absolute" right • Mr. Gleeson added that our argument renders
superfluous other accepted immunities under international Iaw 10•
13. Yet Timor-Leste's position does no such thing. It relies on the principles reflected in ali
immunities: that substantive law, which normally applies, cannot be enforced against aState, be it
in relation toits diplomats, its special missions or its property. As the Court stated in Germany v.
Italy, "[i]mmunity may represent a departure from the principle of territorial sovereignty and the
jurisdiction which flows from it"11•
14. The relationship between immunity and substantive law was further addressed in that
case, where you said:
"Moreover, as the Court has stated (in the context of the persona! immunities
accorded by international law to foreign ministers), the law of immunity is essentially
procedural in nature (Arrest Warrant of 1Apri/2000 (Democratie Republic of the
Congo v. Belgium), Judgment, LC.J. Reports 2002, p. 25, para. 60). It regulates the
exercise of jurisdiction in respect of particular conduct and is thus entirely distinct
from the substantive law which determines whether that conduct is Iawful or
12
unlawful."
And later you said:
"The two sets of rules address different matters. The rules of State immunity
are procedural in character and are confined to determining whether or not the courts
of one State may exercise jurisdiction in respect of another . . . They do not bear upon
CR 2014/2, p.12,para.6 (Gieeson).
CR 2014/2, p.Il,para.6 (Gieeson).
1
°CR 2014/2, p. 23,para.6 (Gieeson).
11
Jurisdictionallmmunities of the State (Gernwny v. !ta/y: Greece intervening), Judgment, I.C.J. Reports 2012,
p.124,para.57.
1/bid., p124, para.58. - 16-
the question whether or not the conduct m respect of which the proceedings are
13
brought was lawful or unlawful."
15. So the fact that Australia claims that its setzure of property in the possession of
Timor-Leste's attorney has been carried out by a warrant issued by the Attorney-General, as
provided for under domestic law, is of no relevance. As noted by the International Law
Commission in its Commentary on the Draft Articles that became the 2004 Convention, "there is a
clear and unmistakable presupposition of the existence of 'jurisdiction' ofthat other State over the
matter under consideration; it would be totally unnecessary to invoke the rule of State immunity in
the absence ofjurisdiction".
16. Timor-Leste's argument is based on this very principle. Be it within the framework of
the United Nations Convention, or as a matter of customary law, the immunity of a State's property
is relevant precisely because it would otherwise be subject to the territorial jurisdiction.
17. Mr. President, Members of the Court, by issuing a warrant for the seizure of documents
belonging to Timor-Leste, and by seizing and retaining such documents, the Australian authorities
breached the inviolability of Timor-Leste's State papers and violated the immunity to which
Timor-Leste is entitled under international law. As the Court said also in Germany v. Italy:
"the rule of State immunity occupies an important place in international law and
international relations. It derives from the principle of the sovereign equality of
States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes
14
clear, is one of the fundamental principles of the international legal order."
18. Mr. Campbell questioned the current status of the United Nations Convention 15• But,
unsurprisingly, this Court, like a number of regional and domestic courts, has found customary law
general rule of immunity.
19. Mr. Campbell challenged the view that in issuing the warrant the Attorney-General was
acting as a "court" within the meaning of the Convention and customary law 16• He said that the
13
Jurisdictional Immunities ofthe State (Germanv.Italy: Greece intervening), Judgment, I.C.J. Reports 2012,
p. 140, para. 93.
14
/bid.p. 123, para. 57.
15
CR 2014/2, p. 25, para. 19 (Campbell).
16CR 2014/2, pp. 23, 26, paras. 9, 22 (Campbell). - 17-
judiciary, and since there are no judicial proceedings when the Attorney-General issues a warrant
under the ASIO Act 17•
20. Mr. Campbell simply did not address the points we made on Monday. He did not refer to
the definition of a "court" in Article 2.1 (a). He did not mention the International Law
Commission's Commentary on that definition and its interpretation 18• He did not address the term
')udicial proceedings" or, in particular, the "quasi-judicial" nature of the Attorney-General's role
when issuing the warrant in this case. He did not address the term ')urisdictional immunities".
:n-
21. :u::R+issa judge that normally issues a search warrant, but here it has been issued by the
Attorney-General. This fact is of no relevance for the purposes of the Convention, which is to be
interpreted autonomously and not by reference to domestic characterizations. Its object and
purpose are served when immunities are granted from seizure of State property, regardless of the
formai position of the issuing authority under domestic law.
22. Mr. Campbell appears to suggest that the Attorney-General's actions were outside the
scope of the law on State immunity 19• But they are precisely the kind of actions that the law on
State immunity aims to prevent. That is why the Commentary states that the Convention applies to
20
the exercise ofjudicial powers by whatever authority •
23. Mr. Campbell's assertion that there are no judicial proceedings involved is also hard to
accept. We have heard Mr. Gleeson list a whole series of criminallegislation concerning offences
21
that may have been breached • We know that the ASIO Act stipulates that its violation amounts to
criminal offence 22• We heard that Australian law does not grant legal professional privilege to
documents seized because they came into existence in pursuance of a crime or fraud 23•
24. In any event, given ali of these references to criminality and criminal procedures, it is
hard to accept that the seizure of the documents and their retention by ASIO is completely
1CR 2014/2, p. 26, para. 23 (Campbell).
1CR 2014/1, pp. 37-38, paras. 20-22 (Wood).
19
CR 2014/2, p. 26, paras. 23-34 (Campbell).
20
Draft Article 1, Commentary (2), Yearbook of the International Law Commission (YILC), 1991, Vol. II, Part II,
p.13.
21
CR 2014/2, p. 17, para. 32 (Gleeson).
2Australian Security Intelligence Organisation Act 1979, Section 4A.
2CR 2014/2, p. 15-18, paras. 27-33 (Gleeson). .·.
- 18-
unrelated to any future judicial proceeding. And 1 would recall that State immunity is to apply
from the very outset of an investigation by another State's authorities.
25. Mr. Campbell argued that Timor-Leste does not accept any exceptions to the rule of
immunity of State property, and that therefore the immunity it argues for is implausible 24•
Mr. President, it is not for Australia or Timor-Leste to accept or make up exceptions. That is a
matter of law. The exceptions reflect the fact that State immunity is a customary rule, as
recognized by this Court, and under customary law there are certain exceptions. For example,
25 26
commercial transactions and in relation to immovable property • But in so far as documents and
data in the hands of legal counsel are concerned, there is no such exception.
26. This is the approach taken by States in their own domestic legislation. The basic rule is
immunity, unless otherwise stipulated. One need look no further than the Australian Foreign States
lmmunities Act of 1985. Article 9 of that Act is entitled "General immunity from jurisdiction" and
makes clear that aState and its property are immune from jurisdiction "[e]xcept as provided by or
under this Act". Nowhere in the Australian Act does it say that State property in the hands of legal
counsel is an exception to the rule on immunity.
27. Mr. Campbell asserts that Timor-Leste claims without basis that State property and
papers enjoy "absolute inviolability" 27• Counsel for Australia seem to like the word "absolute" to
refer to what we said. 1do not in fact recall using that word once on Monday. Australia is once
again engaging in the well-known tactic of overstating a proposition in order to knock it down.
28. Australia was highly selective in the points it chose to address in response to what we
has developed in respect of those matters, which create a web of interrelated and closely linked
rights and obligations, ali stemming from the principle of equality of States, sovereignty and
non-intervention. The similarities, both in content and rationale, between the different types of
immunity have helped develop and form broader principles of general customary international law.
24CR 2014/2, p. 24, para. 17 (Campbell).
25
The United Nations Convention on Jurisdictiona1 Immunities of States and Their Property, Article 10.
26
The United Nations Convention on Jurisdictional Immunities of States and Their Property, Article 13 (a).
27CR 2014/2, p. 24, para. 17 (Campbell). - 19-
29. As Sir Elihu has pointed out, Mr. Campbell said nothing about the recent
United Kingdom practice 2• He also said nothing about Professor Denza's references to the
29
inviolability of archives of a foreign State govemment •
30. He questioned the significance of Mr. Taft's statement 30• While Mr. Taft accepted that
the issues that he was there addressing were "novel and complex", one cannot read that as a
suggestion that the rights to which he referred were not plausible.
31. That the leamed editors of Oppenheim regard official papers m the bands of
non-diplomatie agents as "presumably entitled to immunity" was said to be equivocal. The reverse
is the case: "presumably" is defined in the Shorter Oxford English Dictionary as "so as to take
31
things for granted" or "(qualifYinga statement) as may reasonably be assumed" •
32. As I said on Monday, we read this practice, and these authoritative writings, as
recognizing a general customary rule of inviolability and immunity of State property. They
certainly go to show, I would submit, that the rights we assert are plausible.
33. Mr. President, this is a convenient point to address the question posed by Judge Yusuf.
He asked: "In the view of the Parties, to whom did the individual items Iisted in the ASIO Property
Seizure Record of3 December 2013 and their contents belong ... ?" As we explained on Monday,
documents in the bands of lawyers on behalf of their clients belong to the clients, in this case,
Timor-Leste. That applies to most of the items seized. Of course there were one or two other
items, Iike the mobile phone, which presumably belonged toMs Preston and which was eventually
retumed to her.
(c) Tite rigltts wlwse protection is sougltt and the measures requested
34. Mr. Burmester tried to show yesterday that we had failed to demonstrate the necessary
link between the rights that form the subject of the proceedings and the provisional measures
soughe 2• He said that the relief sought "is ail about ownership of certain documents and their
28
Hansard, 27 November 2013, Cols. 17-ISWS.
29
E. Denza, Diplomatie Law, 3rd ed. 2008, p. 226.
3
°CR 2014/2, p. 27, para. 26 (Campbell).
31Shorter Oxford English Dictionary, Sixth Edition.
32CR 2014/2, p. 29, para. 1 (Burmester). -20-
return. In contrast, the emphasis in the provisional measures (a) to (cl) is on the use of contents of
33
certain documents and data ... "
35. That is to misread and misunderstand the Application and Request. The Application asks
the Court to adjudge and declare that the seizure and continuing detention violate the sovereignty
of Timor-Leste and its property and other rights under international law; that Australia must
immediately return ali the documents and data, and destroy and ensure the destruction of every
copy that has been made; and afford satisfaction and an apology. The main purpose of seeking the
return of the documents and in particular seeking the destruction of copies is to ensure that the
content of the documents does not come into the bands of those who could use it to the
disadvantage of Timor-Leste in its relations with Australia over the Timor Sea. Given that the
property in question comprises highly sensitive documents, it is as plain as plain can be that the
provisional measures sought are related to the rights that form the subject of the proceedings.
36. Indeed, Mr. Burmester seemed to recognize that when he referred to "the right to prevent
any potential advantage Australia may gain from access to the documents in relation to the
34
arbitration and in relation to Timor Sea resources" • It is no answer to say, as he does, that "such a
link cannot be shown in light of the explicit undertaking that the material removed will not be made
accessible to those connected with the arbitration or to anyone other than intelligence and criminal
35
law enforcement personnel" • We did indeed receive a new undertaking yesterday, following what
we said on Monday. The undertaking does not, however, go to the link between the rights at issue
in the case and the preliminary measures sought. Its relevance, if any, would be to the requirement
37. Mr. Burmester laid great emphasis on measure (e), perhaps recognizing that his
arguments on (a)-(d) were very weak, but we think that the link there is equally clear. Australia
clearly considers that it is at liberty to disregard our rights and we request the protection of the
Court in relation to ongoing communications with its lawyers. Sir Elihu bas said ali that needs to
33CR 2014/2, p. 30, para. 5 (Burmester).
34
CR 2014/2, p. 30, para. 6 (Burmester).
35
Jbid. -21 -
be said about Australia's one-sided view of the balance of interests. 1 think 1 shall move to my
conclusion.
The PRESIDENT: 1think that Timor-Leste could continue until 5 or 7 minutes past 11, as
we started a bit late.
Sir Michael WOOD: 1am very grateful, Mr. President. 1shaHgo back a bit in that case.
38. Mr. Burmester argued that there was no risk of irreparable prejudice because the
circumstances of concern will simply not occur 36• And why is this? Apparently because of the
undertakings. We have received a new undertaking and we will look at it with interest in the light
of the responses given to the questions, but we were told yesterday that unilateral undertakings by
States "can give rise to legal consequences" and that "the most recent undertaking given by
37
Australia to this Court ... [is] of that nature" • It would, however, be good to hear the Agent for
Australia say unambiguously that Australia accepts that the undertaking given on 21 January is
binding on Australia, vis-à-vis Timor-Leste, under international law.
39. Mr. Burmester suggest that our concerns about wider matters, other than the Arbitration
38
are "mere speculation" , since there are currently no boundary negotiations. Alas, that is true.
That regrettable fact, however, does not mean that documents relating to our broader legal strategy
are not highly sensitive and should not get into the hands of anyone on the Australian side
concerned with such matters. 1 trust that Australia's statement does not mean that it intends to
disregard its obligation to negotiate a maritime boundary agreement in good faith under Articles 74
and 83 of UNCLOS.
40. We are accused of demonstrating a lack of urgency by failing to bring a claim under
Australian law. lfthis were right it would simply be a backdoor way of forcing foreign States to
submit to domestic courts. Anyway, we do not accept that any of the remedies would be effective.
We note, for example, that Australia's Administrative Decisions (Judicial Review) Act expressly
excludes decisions under the ASIO Act. We also, despite Professor Crawford's eloquence
36
CR 2014/2, p. 34, para. 21 (Burmester).
37
CR 2014/2, pp. 33-34, para. 23 (Burmester).
38CR 2014/2, p. 35, para. 27 (Burmester). -22-
yesterday, cannot see that the remedy, any remedy from the Arbitral Tribunal, would be able to
cover our wider concems.
Concluding remarks
41. Mr. President, in conclusion, let me recall the Diplomatie and Consular Stqff in Tehran
case. The Court there referred to the''extreme importance of the principles of law, which it \ivas]
called upon to apply? And it referred to
"the edifice of law carefully constructed by mankind over a period of centuries, the
maintenancewhich is vital for the security and well-being of the complex
international community of the present day, to which it is more essential than ever that
the rules developed to ensure the ordered progressen its members
39
should be constant!y anrespected"usly
42. The inviolability of State property, in this case confidential and legally privileged papers,
which we seek to uphold with the Application and this Request for provisional measures,
essential parts vital "edifice of law".
43. Mr. President, Members of the Court, that concludes my statement and 1would request
that you invite the Agenteste to the podium.
The PRESIDENThank you very much, Sir1Mgive the floor to the Agent,
His Excellency Ambassador Joaquim You have the floor, Sir.
Mr. DA FONSECA:
...~.o_ll~li.! ~!X_I!lg~~t~-t~g~.!~1~1!.!~i!!l~.l'::f:.~~!.~
1.-.'fhank-.you,Mr...Fresident,--I~shall~now-conclude-T'imor-1.este:.s-------·
oral arguments on its Request for provisional measures, by thanking the Court and reading out our
final submissions.
. __ __.____ ~~·!Jl~~tt-~e~fora~~l~)El()Wre~-s~~ o.mem~!~-~__.in1_n_r--~l~
in the course of the oral observationsMr.Gleeson criticized Timor-Leste
for omitting to mention the profitable revenue-sharing arrangement for the Greater Sunrise fields
40
under the CMArea•This is not the place to debate CMATS, but we cannot let that remark
United States Diplomatie and Consular Staff in Tehran, Judgment, l.C J Reports 1980, pp. 43-44, para. 92.
°CR 2014/2, p. 12, para. 9 (Gieeson). -23-
pass without pointing out the following. Both the Timor Sea Treaty and CMATS Treaty are meant
as temporary arrangements for the exploration and exploitation of maritime resources in the
Timor Sea. But under no conceivable maritime delimitation would the Greater Sunrise fields lie
within Australia's territory. They are located within 200 nautical miles from the coastlines of
Timor-Leste, far closer to Timor-Leste than they are to Australia. So, in the absence of a
permanent maritime boundary, the question remains. To whom actually the resources currently
shared at 50:50 per cent between Timor-Leste and Australia really belong? And who is being
generous to whom?
3. Mr. Gleeson further suggests that Timor-Leste may be encouraging the commission of
crime that threatens Australia's national security4• Mr. President, my government is committed to
pursue justice in this Court. It is equally committed to pursue mutual interests between
Timor-Leste and Australia through broader bilateral co-operation. Such expression of distrust falls
short of a recognition and appreciation of our broader relationship. 1 must firmly reject this
careless and outrageons suggestion. Our counsel have responded to what Australia had to say
yesterday morning. 1only wish to emphasize again the great importance that my country attaches
to these proceedings. Our concern is primarily practical, but also one of principle. Untold harm
could be done to Timor-Leste's vital interest in the resources of the Timor Sea without provisional
measures to ensure that illegal seized materials are not made available to any person having any
role in connection with Australia's diplomatie or commercial relations with Timor-Leste over the
Timor Sea and its resources. In addition, we ask the Court to uphold the principle that one State
may not seize and retain the documents of another State and to recognize the principle of legal and
professional privileges in international law, as both counsels ofTimor-Leste have alluded to.
4. Mr. President, we have of course taken careful note of the new undertakings dated
21 January 2014. But in addition to the remarks that have already been made by the counsel, 1
must say that we await with interest Australia's answer to the questions put by Members of the
Court yesterday.
41
CR 2014/2, p. 20, para. 38 (Gieeson). -24-
5.Itremains only for me now to thank you, Mr. President, and ali Members of the Court for
your courtesy and attention, and to thank the Registrar and his staff, and the interpreters, for ali
their assistance. I also wish to thank our colieagues Australian legal team, especialiy my
friend Mr. John Reid, for the spiritch they have approached these proceedings.
6. I shali now read out the submissions on behalf of the Democratie Republic of
Timor-Leste. They remain unchanged from those inthe Request:
"Timor-Leste respectfully requests that the Court indicate the foliowing
provisional measures:
(a) That ali of the documents and data seized by Australia from 5 Brockman Street,
Narrabundah, in the Australian Capital Territory on 3 December 2013 be
immediately sealed and delivered into the custody of the International Court of
Justice.
(b) That Australia immediately deliver to Timor-Leste and to the International Court
of Justice (i) a list of any and ali documents and data that it has disclosed or
transmitted, or the information contained in which it has disclosed or transmitted
to any person, whether or not such person is employed by or holds office in any
organof the Australian State or of any third St(iia list of the identities or
descriptions of and current positions held by such persons.
(c) That Australia deliver within five days to Timor-Leste and to the International
Court of Justice a list of any and ali copies that it has made of any of the seized
documents and data.
(d) That Australia (i) destroy beyond recovery any and ali copies of the documents
and data seized by Australia on 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 Courttice of ali
steps taken in pursuance ofthat order for destruction, whether or not successful.
(e) That Australia give an assurance that it will not intercept or cause or request the
.~=~=:~~interception~::oLcommunications~between:::Timor"Le ···-·-···a··d·-·
~·-··-····-·-·-~··~-·-~- .ouwthsitdheAru-stirtaliiia.oorr.'I'imor-Leste."-··~-····-··-···················-····~·~···--~-····--~·---
7. In accordance with Article 60, paragraph 2, of the Rules of Court, a signed copy of the
text which I have just read out will be communicated to the Court and transmitted to the other
Party.
8. Mr. President, Members of the Court, that coneludes the oral pleadings of the Democratie
Republicof Timor-Leste. Thank you. -25-
The PRESIDENT: Thank you very much, Excellency. The Court takes note of the
submissions you have just read on behalf of the Government of Timor-Leste. I now give the tloor
to Vice-President Sepulveda-Amor, who has severa! questions. Mr. Vice-President, you have the
floor.
The VICE-PRESIDENT: Thank you very much, Mr. President. I have three questions to be
submitted to Australia. The first oneis the following:
"1. Does Australia have evidence supporting the proposition that Timor-Leste is
encouraging the commission of crimes under Australian law or otherwise jeopardizing
Australia's national security, as suggested by Mr. Gleeson in his intervention of
21 January 2014 before the Court? If so, could Australia be more specifie on this
particular matter?"
My second question is the following:
"2. In accordance with the Australian Security Intelligence Organisation
Act 1979, Section 25 (4C), a text which is included in Annex 13 of Australia'sjudges'
folder, providedtous at yesterday's hearing,
'A record or other thing retained as mentioned in paragraph (4) (d)
of (4A) (c) may be retained:
(a) if returning the record or thing would be prejudicial to security
only until returning the record or thing would no longer be prejudicial to
security; and
(b) otherwise- for only such time as is reasonable.'
Should the documents, data and other property seized by the Australian
authorities at the premisesof Mr. Bernard Collaery be still retained by the Australian
authorities on grounds that returning them is currently prejudicial to Australia's
nationalsecurity?"
And my third question is the following:
"3. Does Australia consider that, under customary international law, State
documents are entitled to international protection in the form of immunity and
inviolability outside the framework of diplomatie and consular relations? If so, what
is the extent of international protection that Australia claims for its own State
documents in foreign territory?"
Those are my three questions, Mr. President. I thank you very much indeed.
The PRESIDENT: Thank you very much, Mr. Vice-President. Australia is invited to reply,
in the course of the second round of oral argument. The text of the questions will be transmitted to -26-
both Parties as soon as possible. If Timor-Leste wishes to comment on replies provided by
Australia it can do that, in writing, at the latest by Friday, 24 January, 6.00 p.m.
The Court will meet again this afternoon at 5.00 p.m. to hear the second round oral argument
of Australia. Thank you. The Court is adjourned.
The Court rose at 11.05 a.m.
Public sitting held on Wednesday 22 January 2014, at 10 a.m., at the Peace Palace, President Tomka presiding, in the case concerning Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia)