Corrigé
Corrected
CR 20J4/J
International Court Cour internationale
of Justice de Justice
THE HAGUE LAHAYE
YEAR2014
Public sitting
lteld on Monday20 January 20J4, atJO a.m.,at tite Peace Palace,
President Tomka presiding,
intite case concerning Questions relating to the Seizure and Detention
of Certain Documents and Data
(Timor-Leste v.Australia)
VERBATIM RECORD
ANNÉE2014
Audience publique
tenue le lundi0janvier 20J4,à JO heures, au Palais de la Paix,
sous la présidencedeM. Tomka, président,
en l'affaire relativees Questions concernant la saisie et la détention
de certains documents et données
(Timor-Leste c. Australie)
COMPTE RENDU -2-
Present: President Tomka
Vice-President Sepulveda-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 Govemment 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 ofhlternational Law, University of Oxford, member
of the English Bar,
Sir Michael Wood, K.C.M.G., Member of the hlternational Law Commission, member of the
English Bar,
as Counsel and Advocates;
Ms Janet Legrand, Partner, DLA Piper UK LLP,
Ms Emma Mat1in, Associate, DLA Piper UK LLP,
Ms Jolan Draaisma, Senior Associate, Collaery Lawyers,
"D q:>h\..;
Mr. Andrew Legg,!PR-:Q,member of the English Bar,
as Counsel;
Mr. Andrew Sanger, Lauterpacht Centre for Intemational Law, University of Cambridge,
as Junior Counsel;
Mr. Bernard Collaery, Principal, Collaery Lawyers,
as Advisor. - 5-
Le Gouvernement du Timor-Leste est représenté par:
S. Exc. M. Joaquim A.M.L. da Fonseca, ambassadeur de la République démocratique du
Timor-Leste auprèsdu Royaume-Uni,
comme agent ;
S. Exc. M. JoséLuis Guterres, ministre des affaires étrangères et de la coopération de la
Républiquedémocratiquedu Timor-Leste;
S. Exc. M. Nelson dos Santos, ambassadeur de la Républiquedémocratiquedu 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'Universitéd'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, associée auCabinet DLA Piper UK LLP,
Mme Emma Martin, collaboratrice au Cabinet DLA Piper UK LLP,
Mme Jolan Draaisma, collaboratrice principale au Cabinet Collaery Lawyers,
'J)Ç>\...; \.
M. Andrew Legg, !Ph:B\,membre du barreau d'Angleterre,
comme conseils ;
M. Andrew Sanger, Lauterpacht Centre for International Law de l'Universitéde Cambridge,
M. Bran Sthoeger, LL.M, Facultéde droit de l'Universitéde New York,
comme conseils auxiliaires ;
M. Bernard Collaery, associéprincipal, Cabinet Collaery Lawyers,
comme conseiller. -6-
The 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-Generalof 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 SelbOJ:trneChambers, 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 Telec, Senior Legal Officer, Attorney-General's Department, .
Ms Esme Shirlow, Acting Senior Legal Officer, Attorney-General's Department,
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 1'Attorney-General,
Mme Amelia Telec,juriste hors classe, services de l'Attorney-General,
H Mme EsmeaShirlow,juriste hors classe par 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 open. The Court meets
today under Article 74, paragraph 3, of the Rules of Court, to hear the observations of the Parties
on the Request for the indication of provisional measures submitted by the Democratie Republic of
Timor-Leste in the case concerning Questions relating to the Seizure and Detention of Certain
Documents and Data (Timor-Leste v.Australia).
For reasons which she bas duly conveyed to me, Judge Sebutinde is unable to be present on
the Bench today.
Bach of the Parties in the present case, the Democratie Republic of Timor-Leste and
Australia, has availed itself of the possibility afforded toit by Article 31 of the Statute of the Court
to choose a judge ad hoc. Timor-Leste bas chosen Mr. Jean-Pierre Cot, and Australia,
Mr. lan Callinan.
Article20 of the Statute provides that "[e]very Member of the Court shall, before taking up
his duties, make a solemn declaration in open court that he will exercise his powers impartially and
conscientiously". Pursuant to Article 31, paragraph 6, of the Statute, that same provision applies to
judges ad hoc. Notwithstanding that Mr. Jean-Pierre Cot bas been a judge ad hoc in the past and
made a solemn declaration in previous cases, Article 8, paragraph 3, ofthe Rules of Court provides
that he shall make a new solemn declaration for the purpose ofthese newly initiated proceedings.
In accordance with custom, 1shall first say a few words about the career and qualifications
of eachjudge ad hoc before inviting him to make his solemn declaration.
··~ Mr;Jan:Callinan; of:Australian: nationality;: is -a:retired Justice=:ofthe:highescCourt::·of-····
Australia, its High Court. He was admitted to the Queensland Bar in 1965 and subsequently
appointed Queen's Counsel in 1978. Mr. Callinan served as President of the Queensland Bar
Association from 1984 to 1986 and as President ofthe Australian Bar Association in 1986. He was
appointed Justice of tlle Hig11Totirt of Austràlia iill997 arid contirilied to serve in thaf capaCicy
until his retirement in 2007. During his illustrions career, both as advocate and as judge,
Mr. Callinan bas dealt with wide-ranging cases covering, inter alia,constitutional, commercial and
criminal law. In addition, he has appeared on severa} occasions before Royal Commissions, the
High Court of Australia and the Privy Council. He continues to practise as a qualified arbitrator -9-
and mediator. Mr. Callinan is an adjunct Professer of Law at the University of Queensland and is
the author of numerous law reviews and articles. Mr. Callinan is an Honorary Life Member of
severa! Bar Associations.
M.Jean-Pierre Cot, de nationalitéfrançaise, est membre du Tribunal international pour le
droit de la mer. Il est égalementprofesseur éméritede l'UniversitéParis-1(Panthéon-Sorbonne) et
chercheur associéau Centre de droit international de 1'Universitélibre de Bruxelles. Entre 1981
et 1982, il a étéministre chargéde la coopérationet du développementau sein du Gouvernement
français, avant d'êtreéluau Conseil exécutifde l'UNESCO, en 1983. Pendant 17 ans, M. Cota été
membre du Parlement européen, au sein duquel il a exercé d'éminentes fonctions, notamment
celles de présidentde la commission des budgets, de présidentdu groupe socialiste au Parlement
européen, et de vice-président du Parlement européen. Il a aussi étédéputéà l'Assemblée
nationale française. M. Cota déjàexercéles fonctions de juge ad hoc dans quatre affaires dont a
connu la Cour. Il est arbitre dans une affaire concernant la délimitation maritime entre le
Bangladesh et l'Inde. M. Cot est l'auteur de nombreuses publications dans le domaine du droit
international, du droit européen et des sciences politiques. Il a également étéprésidentde la
Société française pour le droit international de 2004 à 2012.
ln accordance with the order of precedence fixed by Article 7, paragraph 3, of the Rules of
Court, 1shall first invite Mr. lan Callinan to make the solemn declaration prescribed by the Statute,
and 1would request ali those present to rise. Mr. Callinan, you have the floor.
Mr. CALLINAN: "1solemnly declare that 1will perform my duties and exercise my powers
asjudge honourably, faithfully, impartially andconscientiously."
The PRESIDENT: Thank you. J'invite maintenant M. Jean-Pierre Cot à faire la déclaration
solennelle prescrite pare Statut. M. Cot, vous avez la parole.
M. COT: «Je déclare solennellement que je remplirai mes devoirs et exercerai mes
attributions de juge en tout honneur et dévouement,en pleine et parfaite impartialitéet en toute
conscience.» - 10-
The PRESIDENT: Je vous remercie. Please be seated. I take note of the solemn
declarations made by Mr. Callinan and Mr. Cot, and declare them duly installed asjudges ad hoc in
the case concerning Questions relating to the Seizure and Detention of Certain Documents and
Data (Timor-Leste v.Australia).
*
* *
The proceedings in the present case were instituted on 17 December 2013 by the filing in the
Registry of the Court of an Application by the Democratie Republic of Timor-Leste against
Australia concerning the alleged seizure and subsequent detention by "the 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 internationallaw". Timor-Leste alleges that Australia has seized, in
particular, documents relating to a pending arbitration under the2002 Timor Sea Treaty between
Timor-Leste and Australia.
To found the jurisdiction of the Court, Timor-Leste relies on the declaration it made on
21 September 2012 under Article 36, paragraph 2, of the Statute, as weil as on the declaration
Australia made on 22 March 2002 under the same provision.
I shall now ask the Registrar to read out the decision requested the Court, as formulated in
the Application of Timor-Leste. Monsieur la greffier, vous avez la parole.
The REGISTRAR: Merci.
"Timor-Leste requests the Court to adjudge and declare:
First, [t]hat the seizurey Australia of the documents and data violated (i) the
sover_eigntyQ[Timor-Lesteand (ii) its property and other rights under illiernaiionaL
law and any relevant domestic law;
Second, [t]that continuing detention by Australia of the documents and data
violates (i) the sovereignty of Timor-Leste and (ii) its property and other rights under
international law and any relevant domestic law;
Third, [t]hat Australia must immediately return to the nominated representative
of Timor-Leste any and ali of the aforesaid documents and data, and destroy beyond
recovery every copy of such documents and data that is in Australia's possession or - 11-
control, and ensure the destruction of every copy that Australia has directly or
indirectly passed to a third person or third State;
Fourth, [t]hat Australia should afford satisfaction to Timor-Leste in respect of
the above-mentioned violations of its rights under international law and any relevant
domestic law, in the form of a formai apology as weil as the costs incurred by
Timor-Leste in preparing and presenting the present Application."
The PRESIDENT: Thank you. On the same day as the filing of the Application,
Timor-Leste submitted a Request for the indication ofprovisional measures, referring to Article 41
of the Statute of the Court and to Articles 73, 74 and 75 of the Rules of Court. In its Request for
the indicationof provisional measures Timor-Leste alleges, inter alia, that there is a risk that "the
[above-mentioned] 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
disadvantage of Timor-Leste" both in the pending arbitration and with regard to other matters
relating to the Timor Sea and its resources. lt further adds that Australia "may pass such
information to thirdparties".
1 shall now ask the Registrar to read out the passage from the Request specizying the
provisional measures which the Government of Timor-Leste is asking the Court to indicate.
Monsieur le Greffier, vous avez la parole.
The REGISTRAR: Merci.
"Timor-Leste respectfully requests that the Court indicate the following
provisional measures:
(a) [t]hat 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) [t]hat 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
organ of the Australian State or of any third State, and (ii) a list of the identities or
descriptions of and current positions heid by such persons.
(c) [t]hat 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) [t]hat 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 - 12-
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 order for destruction, whether or not successful.
(e) [t]hat 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 or butside Australia or Timor-Leste."
The PRESIDENT: Merci. On 17 December 2013, immediately after the filing of the
Application and Request for the indication of provisional measures, the Registrar, in accordance
with Article 40, paragraph 2, of the Statute and Article 38, paragraph 4, and Article 73,
paragraph 2, of the Rules of Court, transmitted certified copies thereof to the Government of
Australia. He also notified the Secretary-General of the United Nations of the filing of these
documents by Timor-Leste.
By a letter dated 18 December 2013, referring to Article 74, paragraph 4, of Rules of Court,
in my capacity as President of the Court, 1calied upon Australia "to act in such a way as to enable
any Order the Court will make on the request for provisional measures to have its appropriate
effects, in particular to refrain from any act which might cause prejudice to the rights claimed by
the Democratie Republic ofTimor-Leste in the present proceedings".
According to Article 74 of the Rules of Court, a Request for the indication of provisional
measures shali have priority over ali other cases. The date of the hearing must be fixed in such a
way as to afford the parties an opportunity of being represented at it. Consequently, foliowing
consultations, the Parties were informed that the date for the opening of the oral proceedings
their observations on the Request for the indication of provisional measures, had been set at
20 January 2014, at 10 a.m.
1note the presence before the Court of the Agents and counsel of the two Parties. 1also note
---------------- - - --------- ------------------------------------------------
the presence of the Foreign Minister for the Democratie Republic of Timor-Leste for these
hearings. The Court will hear Timor-Leste, which has submitted the Request for the indication of
provisional measures, this morning until 25 minutes past noon. lt will hear Australia tomorrow
morning, at 10 a.m. - 13 -
For the purposes of this first round of oral arguments, each of the Parties will have available
to it a full two-hour sitting.
After the first roundof oral arguments, the Parties will have the possibility to reply, if they
deem it necessary, on Wednesday 22 January 2014; Timor-Leste at 10 a.m. and Australia at 5 p.m.
Bach ofthe Parties will have a maximum time of one hour in which to present its reply.
Before giving the floor to His Excellency Ambassador Joaquim da Fonseca, Agent of the
Democratie Republic of Timor-Leste, 1 wish to draw the attention of the Parties to Practice
Direction Xl, which states inter alia that parties should
"[i]n their oral pleadings on requests for provisional measures ... limit themselves to
what is relevant to the criteriafor the indication ofprovisional measures as stipulated No:.\'r.,.).;,c:.-:..
in the Statute, Ru/es and jurisprudence of the Court. They should not enter into the
merits of the case beyond what is strict/y necessary for that purpose."
1 now cali upon His Excellency Mr. Joaquim da Fonseca, Agent of the Democratie Republic
of Timor-Leste. Excellency, you have the floor, please.
Mr. DA FONSECA:
INTRODUCTORYSTATEMENT
1.Thank you, Mr. President. Mr. President, Members of the Court. lt is an honour for me to
represent my country, the Democratie Republic of Timor-Leste, in these proceedings.
2. The Government and people of Timor-Leste place their trust in international law, which
played an important role in our struggle for independence, and in this Court, the principal judicial
organ of the United Nations. That trust is shown by our acceptance, in September 2012, of the
compulsory jurisdiction ofthis Court.
3. This is, of course, not the first time that matters related to the permanent sovereignty of
Timor-Leste over its natural resources have been considered by this Court, but it is the first time
that relief has been sought by Timor-Leste as an independent State. In the 1990s Portugal, as the
administering power of the territory of Timor-Leste, commenced proceedings here in The Hague,
also against Australia, arguing inter alia that Australia had infringed upon "the rights of the people
of East Timor to self-determination, to territorial integrity and unity and to permanent sovereignty - 14-
1
over its wealth and natural resources" by entering into the so-called "Timor Gap Treaty" with
Indonesia for the exploration and exploitationof sea-bed petroleum resources belonging to
Timor-Leste. The Court found that it could not exercise the jurisdiction conferred upon it, because
fNI"\
of the absence of Indones.ffthe proceedings• That decision is a significant part of the series of
legal (and illegal) steps that have brought us to the present proceedings. The 1995 Judgment also
contains the Court's summary of the tragic story of Timor-Leste up to that time, and Australia's
rotetherein• The dissenting opinions of Judge Weeramantry and Judge ad hoc Skubiszewski
contain more detailedackground •
4. Mr. President, let me say at the outset that present-day relations between Timor-Leste and
Australia, two neighbouring countries, are close and friendly and they will remain sofuture.
lri the words of the Foreign Minist~r Australia, in terms of the relationship between the two
countries,"the best is yet to come".Australia played an important and very constructive rote
leading up to and at the time of our independence in 2002 and, subsequently, as a part of United
Nations efforts. We remain grateful for that.
5. But natural resources of the sea that bath unite and divide us remain a serious bane of
contention. Those resources are, in the words of a former judge of this Court, "the principal
5
economie assetof the East Timorese people"• The Govemment and people of Timor-Leste fee( a
real sensef grievance at the manner in which they have been treated by our large neighbour in this
respect. To their credit, there are manyAustralia who share our discontent. By an amendment
~
-tefts Optional Clause declaration in 2002, Australia has sought to black our access to this Court.
~------~- ___imor_,Leste~has_now_lnitiated_arbitratiotLunder-A .~tThcene,2--_ÎnL~t-~e-.-~imor-Sea_Treaty
complete disregard and disrespect of our sovereignty, Australian secret agents have seized papers
relating to the arbitration proceedings as weil as other important legal matters between Timor-Leste
and Australia. That has caused deep offence and shock my country.
1
Case conceming East Timor (Portugal v. Australia), Judgment, !.C.J. Reports 1995, p. 94, para. 10.
2
Jbid., p. 106, para. 38.
3
Jbid., pp. 95-98, paras. 11-18.
4
Ibid., pp. 144-149, dissenting opinion of Judge Weeramantry; pp. 226-34, paras. 3-32, dissenting opinion of
Judge ad hoc Skubiszewski.
Jbid., p. 151, dissenting opinion of Judge Weeramantry. - 15 -
6. It is that that brings us here, to this Great Hall of Justice, to seek justice from the World
Court over the seized documents and data. This case concerns a serious infringement, by Australia,
of the inviolability of official documents of the Democratie Republic of Timor-Leste, and their
immunity from measures of constraint, as property of a sovereign State. The potential injury to
Timor-Leste flowing from that internationally wrongful act is grave. And contrary to Australia's
position, as a sovereign State, the most appropriate forum for Timor-Leste to seek justice in this
matter is before the World Court.
7. We are gratefulto the Court for swiftly arranging this hearing, and we are grateful to you,
Mr. President, for your prompt action under Article 74, paragraph 4, of the Rules of Court.
8. Mr. President, Members of the Court, Timor-Leste's case will be presented by its counsel
in the following order:
Sir Elihu Lauterpacht will first address you on the importance of the case and the factual
background, and outline our legal case for provisional measures.
He will be followed by Sir Michael Wood, who will elaborate on the application of the law and
practice to the circumstances of our case.
9. Mr. President, I thank you for your attention, and request that you invite
Sir Elihu Lauterpacht to the podium.
The PRESIDENT: Thank you very much, Excellency. I give the floor to
Professor Sir Elihu Lauterpacht. You have the floor, Sir. Welcome back, Sir Elihu.
Sir Elihu LAUTERPACHT:
Introduction
1. Mr. President and Members of the Court, 1 have the honour to appear before you once
again, together with Sir Michael Wood. Professor Lowe QC has also been working with us but
unfortunately he is committed to act as an arbitrator elsewhere this week, and he asks me to convey
his apologies.
2. May 1 begin with a few words of reassurance- and I hope comfort- despite the
circumstances surrounding the present case, this is not a case about spying and espionage. The - 16-
Court will not have to pronounce on such activities geRather, the case is a relatively
simple one.One State has taken the property of another, and should be required to give it back,
untouched and without delayThat is essentially ali that Timor-Leste asks and it prays the
assistance of the Court in putting right the wrong that has beSo I now turn to the
substanceofwhat 1have to say. But first, I must observe that it is not without regret that 1am now
appearingin a case against Australia. For three years from 1975 to 1977 I served as the principal
Legal Adviserof the Australian Department of Foreign Affairs. During that time, I conceived a
deep affection and high regard for that country.s saddening for me that in this case I am
obliged to confront Australiaspect of conduct which inexplicably falls so far short of the high
standards that prevailed in my time. Permit me to explain.
3. This is a request for the grant of provisional measures of protection in a case brought by
Timor-Leste against Australia. The casee which, 1venture to suggest, is likely to lie outside
the direct experiencemany Members of this Court. This is not an ordinary dispute about title to
territory or about maritime limits or about exproprlt is, rather, about the seizure by
Australiaof confidential and privileged materials and data belonging to TimoThesete.
materials include details the legal advice received by it and, no less importantly, of
considerations of strategy in connection with the as yet unsettled maritime delimitation between
Timor-Leste and Australia.hardiy needs saying that these are matters of the highest importance
to Timor-Leste. The documents relate to issues such as Timor-Leste's negotiating positions and
strategyn relation to Australia. As Mr. Burmester, one of the counsel for Australia, said in the
.....................
-~------·---·~ç~OJ.Jrs~~-9L~J._rgym~JJtinJJle A.Wsbarlilrizg_ç_nasT_em.o_b_~e:Joers_t
not a simple one.The details of the proposed arrangements with Timor-Leste, he said, are
"complex".
He continued that they go far beyond a straightforward delimitation and involve the
negotiationf resource-sharing arrangements that, at an earlier stage, took the form of three treaties
between Australia and Timor-Leste (28 June 2013, 2013/11, p. 45, paras. 23-24The
materials seized also relate to Timor-Leste's preparations for the international arbitration
just mentioned, separate from this case, an arbitration that Timor-Leste has been obliged to
commence before an international tribunal that will sit here. This Australian conduct - 17-
manifestly distorts the character of the future negotiations by placing Timor-Leste at a considerable
negotiating and litigating disadvantage. This unprecedented and improper, indeed inexplicable,
conduct, compounded at various times by self-contradictory statements on behalf of Australia, is
not the behaviour of some State that does not subscribe to normal standards of international legal
behaviour. Rather, it is the behaviour of a State of considerable international standing. Its
behaviour in the present situation defies understanding.
Bacl<ground
4. I should go no further without elaborating on what 1have just said by providing the Court
with a sketch of the background to the present request. It arises out of differences between two
close neighbours, one very large, powerful, well-established, rich in natural resources, and
evidently capable of mustering legal forces of considerable strength and standing. The other party
is newer, much smaller, and much poorer.
The Arbitration under the Timor Sea Treaty
5. Timor-Leste has commenced an arbitration against Australia. lt concerns a treaty
concluded in 2002 dealing with the division between the two Parties of interests in the Timor Sea.
For convenience I will henceforth refer to this Treaty simply as "the Timor Sea Treaty". 1will not
burden you with the details of this Treaty, which are not relevant for present purposes. The full
text can be fmmd in United Nations, Treaty Series (UNTS), Volume 2258 (p. 4). The duration of
this Treaty was prescribed by Article 22 to be 30 years, expiring in 2033. In 2006, a further treaty
on the same general subject was concluded between the two Parties. 1 will cali this 2006 treaty
"the CMATS Treaty" after its name "Treaty Conceming Certain Maritime Arrangement in the
Timor Sea". Again, 1 need not trouble you with the details of the Treaty, of which the text is
printed in UNTS, Volume 2483 (p. 359). This included an extension of the duration of the Timor
Sea Treaty, the earlier treaty, to a total of 50 years and also, in Article 4, headed "Moratorium",
precludes Timor-Leste from seeking during the whole ofthat period tore-open negotiations for the
division of maritime rights between the two sides. This limitation is seriously disadvantageous to
Timor-Leste, but was accepted by it at the time in the belief that it was proposed by Australia in
good faith as being in the best interests of bath parties. In fact, one of the major disadvantages to - 18-
Timor-Leste of the CMATS Treaty is that, by the time that the area is restored to Timor-Leste at
the conclusionof the extended period, it is likely that the resources of oil and gas in the area will
have been seriously depleted,f not exhausted.
6. Sorne years later Timor-Leste learned that during the whole of the central period of the
negotiations leading to the CMA TS Treaty, Australia had clandestinely been intercepting the
internai discussionsof the Timorese Government by means of bugging deviees and hidden
microphones that had been secretly installedn the Timor-Leste Government premises by officers
of the Australian Secret Intelligence Service (which I shall cali hereinafter ASIS). The precise
benefit to Australiaf the acquisition of the information thus obtained cannet be estimated by
Timor-Leste. It undoubtedly must have given Australia an important negotiating advantage and
enabled it to develop its own position accordingly. Otherwise, we must ask, why would Australia
have done it?
7. On learning of this behaviour by Australia, Timor-Leste realized that it had been the
victimof a serious international wrong and gave Australia notice that it considered the Australian
conduct to have rendered the CMA TS treaty invalid in international law as an act evidently not
performed in good faith. This carried with it the invalidation of the attempt to alter the duration
establishedin the Timor Sea Treaty, the earlier treaty. A dispute under the Timor Sea Treaty thus
arose. Timor-Leste called for the negotiations or consultationsrelation to this issue. Australia
took the position that there wasno dispute and declined to enter into serious discussions. In
consequence, Timor-Leste commenced arbitration proceedings under the dispute settlement
--~---~---~~Prmdsions _Iioor_Shea_Ireacy,_Article23.._Ihls__matter__is_no:w before_a_distinguishecL______
international arbitral tribunal composed Lord Collins of Mapesbury, appointed by Timor-Leste,
Professer Michael Reisman, appointed by Australia, and Professer Tullio Treves as Chairman,
selected by the two party-appointed arbitrators.That arbitrationis being administered by the
Permanent Court of Arbitration.
The seizure by Australia of Timor-Leste's property in the possession of its lawyer
8. Advice on Timor-Leste's international legal affairs has for many years largely been in thé
hands of a distinguished and experienced Australian lawyer, Mr. Bernard Collaery. Mr. Collaery's - 19-
principal law offices are in Canberra, in the Australian Capital Territory. Through his office
Mr. Collaery conducts his legal activities covering a number of matters for the Govemment of
Timor-Leste, as weil as for other clients. In that office, Mr. Collaery regularly keeps, on behalf of
the Govemment of Timor-Leste, many confidential documents relating to the intemational legal
affairsof Timor-Leste. Some cover such very important and delicate matters as the negotiations
between the two countries regarding access to the maritime resources of the Timor Sea.
9. On 2 December 2013, the Australian Attomey-General issued a warrant seemingly
authorizing the Australian Security Intelligence Organisation (ASIO) to conduct a search of
Mr. Collaery's office and to remove unspecified material from it. The warrant is at tab 1 in the
folder before you. On 3 December, while Mr. Collaery was in The Hague engaged in the
preparations for the Arbitration, a number of officers of ASIO, as weil as some members of the
Australian Federal Police, arrived at Mr. Collaery's office in Canberra. One of Mr. Collaery's
legal assistants, Ms Preston, was alone in the office at the time. The officers presented the warrant
authorizing the entry and seizure of documents, but never told Ms Preston what exactly they were
seeking, or why. In the pressure of the moment Ms Preston sought to read the warrant but felt so
intimidated by the presence of over a dozen ASIO personnel that she could not finish it. Moreover,
many of the words in it were blacked out. Her request for a copy was refused on the grounds that it
was a matter of national security. The officers remained on the premises for several hours. They
inspected many files. We do not know to what extent they made notes or otherwise copied what
they found, as they were authorized to do by the sweeping tenns of the search warrant- "to ...
inspect or otherwise examine any records or things so found, and to make copies or transcripts".
They left taking with them a number of packages of documents, as weil as a laptop and a USB
~~~ ...re:.
stick. These are listed in the "property ssnc1eElrecords" that are before the Court in tab 2 of
Timor-Leste's judges' folder. Mr. Coilaery, whose premises were thus invaded, cannot specif)r
exactly what was in the documents taken, but it is certain that many of them related not only to the
Arbitration and to the development of Timor-Leste's negotiating position in the bilateral
discussions that should eventuaily take place between Timor-Leste and Australia regarding the
division of the resources ofthe Timor Sea lying between the two States and its delimitation. That
Australia regards the prospect of such negotiations with some disfavour can be seen from the fact -20-
that it secured the imposition upon Timor-Leste in that is, the later Treaty
of an undertaking not to press for negotiations for the period of that Treaty, namely fifty years.
Nonetheless, in anticipation of an earlier start, Timor-Leste has commissioned technical studies on
which to base its case. A number documents were in the possession of Mr. Collaery and
were taken away under the warrant. It may be noted that although the Australian Attorney-General
has undertaken that the material seized on 3 December will not be seen by persons involved in the
Arbitration, his undertakings are silent upon the availability ofthese very sensitive and confidential
documents to those Australian officiais involved in maritime delimitation matters.
The Government ofTimor-Leste's ownership of the seized material
1O.The ASIO officers left at Mr. Collaery's offices a "property seizure record". This is the
list material taken which you will find this at tab 2 in the folders. The property seizure record
provides sorne indication in general terms of the possible scope of the material seized. You will
see, for example, at the items numbered [0]01, [0]02 and [0]03, an iPhone, a laptop and a USB
thumb drive; these may contain a very wide and miscellaneous range of materials. The remaining
items are documents, sorne of the contents of which can be recalled, and others not. They too go
weil beyond the Arbitration. For example,
Item LPP[0]04 is described as "Document entitled 'Challenging the Validity of the certain
Maritime arrangements in the Timor Sea Treaty"' (23 pages). That document is a "brief to
counsel to advise" dated 7 MarIt contains detailed consideration of various legal
·-~·-·--: -Q-·:j_-~n~t-·-~---~i=b-·s1lr!!1~igi~-~~--_e::foMr~~~s~~:Ir~_aty_~~~~-.Jt~is~-~J1ot~J:elat~.d-~~_tQ~·th_e~=-oJJgoing~~.---~~-:~~-~.-:.·~-
arbitration proceedings, but ranges much wider, setting out the strengths and weaknesses of the
various delimitation options.
Other items, as can be seen, refer expressly to "correspondence" with Professor Vaughan Lowe
conceming the Timor Sea Treatya:nâ bounda:ryma:tters. Doring the years to whicnthe seizute
records suggest that these documethat is, from 2010 onProfessor Lowe
has received many papers from Mr. Collaery, including copies of detailed legal and technical
opinions and reports conceming the Timor Sea and the likelihood, indeed the probability is that
Mr. Collaery retained copies of the documents that he sent to Professor Lowe. -21 -
Still others consist of correspondence between Mr. Collaery's law office and the Prime
Minister of Timor-Leste.
11. It is thus clear that among the material taken were many files relating to matters on
which Mr. Collaery's office was working on behalf of the Govemment of Timor-Leste. Ali these
files are thus the property of the Govemment of Timor-Leste and were held as such by
Mr. Collaery in the course of his duties on behalf of the Govemment of Timor-Leste. This is fully
in line with the generally accepted proposition that the client- in this case the Govemment- has
proprietary ownership of documents that have been brought into existence, or received, by a lawyer
acting as agent on behalf of the client, or that have been prepared for the benefit of the client and at
the client's expense, such as, letters of advice, memoranda and briefs to counsel. The ownership by
Timor-Leste of these materials in the possession of Mr. Collaery is further attested by the
Contractual Provisions in Mr. Collaery's retainer to the effect that the copyright title in ali the
material prepared by Mr. Collaery on behalf of the Govemment of Timor-Leste belongs to the
Govemment. The expression "copyright title" covers also the physical ownership of the documents
containing the copyright material. The general rule about the ownership of property through an
agent is weil reflected in certain passages from the judgments of the House of Lords in the case of
Rahimtoola v. Nizam of Hyderabad [1958] A.C. 379. I will read only a few passages. Fuller
extracts appear at tab 21 of your foIder.
Thus, Viscount Simonds said:
"No doubt, if a defendant, by whatever name he is called, can be identified with
the Sovereign State, his task is easy: he need prove no more in order to stay the action
against him. But, as soon as it is proved that quoad the subject-matter of the action the
defendant is the agent of a Sovereign State, that, in other words, the interests or
property of the State are to be the subject of adjudication, the same result is reached."
Now, of course, I am sure the Court will appreciate that this is a case about State immunity, but it
does not differ in substance as regards the matter before the Court now, from the present case
which is about the property of the State.
Lord Simonds continued:
"'Two propositions of international law,' said Lord Atkin [he has, here, Lord
Simonds quoting from Lord Atkin in the so-called Christina case] (Compania Naviera
Vascongado v. S.S. 'Cristina'): '[are] engrafted into our domestic law which seems to
me to be weil established and to be beyond dispute. The first is [I am still quoting -22-
from Lord Atkin] that the courts of a country will not implead a foreign sovereign.
Thatis, they will not by their process make him against his will a party to (the) legal
proceedings, whether the proceedings involve process against his person or seek to
recover from him specifie property or damages. And the second [again quoting from
Lord Atkin]s that they will not by their process, whether the sovereign is a party to
the proceedings or not, seize or detain property which of which he is in
possession or control."'
Lord Atkin said later:
'"If property locally situate in this country is shown to belong to, orto be in the
possession of,independent foreign Sovereign, or his agent, the courts cannot listen
to a claim which seeks to interfere with his title to that property,f
possession of it."' -
In his speech, Lord Reid quoted from the decision of the Privy Council in the case of Juan
Ysmael & Co. !ne. v. Indonesian Government [1954] 3 WLR 531. And the quotation is:
"In their Lordships' opinion a foreign government claiming that its interest in
property will be affected by the judgment in an action to which it is not a party, is not
bound as a conditionobtaining immunity to prove its title to the interest claimed,
but it must produce evidence to satisfy the court that its claimllusory,
nor founded on a title manifestlye."
The Detention by the Government of Australia ofthe Government ofTimor-Leste's Material
12. This confidential material has been in the hands of the Australian Government for seven
weeks. Despite the undertakingse Attorney-General, it seems hard!y Iikely that they have not
been closely examined by Australian officiais. I repeat, these materials are relevant to any future
maritime negotiations, consisting as they dodvice of counsel, including assessments of
Timor-Leste's position and the instructions given to counsel and to geological and maritime experts
and the opinions and advice that they haveclearly ali of a highly confidential nature.
------rT:-A.I1ütïler--waï--üfaJ?J?roacï1Iilg-tile9-liestio
n-oforefnetr-1~1i1---TI' tou=-fl-- --aw
legal professional privilege. For this purpose it is sufficient to refer to part of the passage in
Halsbury's Laws of England, Volume 66, dealing with this question in section 1146. I will read
three short passages:
First:
"Confidential communications passing between a barrister and his professional
or lay client for the purposeesting or giving legal advice, such as instructions
to counsel and counsel's advice, are privileged from disclosure; the court will not, at
the instance a third party, compel the client, and will not allow the barrister, to
disclose them. The privileget confined to such communications as are made in
the course of, or in anticipation of, litigation, but the communications must be made in
a professional capacity; and the communications must beential character." -23-
Second quote:
"The right to the confidentiality of communications between lawyer and client
is also protected by Community law and by the Convention for the Protection of
Human Rights and Fundamental Freedoms."
Third quotation:
"Where no waiver of privilege has taken place, an injunction may be granted to
compel another party into whose hands a privileged document has come to deliver up
the document and any copies or notes of it and not to disclose or make any use of any
information contained in the document."
This is the position in English law and, I would guess, no doubt also in Australian law if,
which is not admitted, that should be relevant.
The Australian Defence of "National Security"
14. The basis on which this search was carried out, and the grounds given for the refusai to
return the material, were said by the ASIO officers to concern a matter of "national security". To
what extent, if at ali, "national security" may be a relevant consideration in the circumstances of
this case will presumably be argued by Australia. It is not for Timor-Leste to anticipate Australia's
arguments and it will wait until it hears them. But in anticipation of those arguments, whatever
they may be, it should be borne in mind that national security is a two-sided matter. To the extent
that national security has any relevance to Australia's case, which is denied, national security is
also relevant to the positionof Timor-Leste. The seizure of the documents held by Mr. Collaery on
behalf of the Government of Timor-Leste is undoubtedly a violation of the national security of
Timor-Leste.
15. It is appropriate to recall in connection with the constant reference by Australia to
"national security", that there is persuasive international authority qualizying the extent to which
this factor may be taken into account. In Prosecutor v. Blaskié,the International Tribunal for the
Former Yugoslavia was confronted by a plea that the documents sought from Croatian State
officiais were protected by "national security". The Tribunal explained:
"[T]o grant States a blanket right to withhold, for security purposes, documents
necessary for trial mightjeopardise the very functionof the International Tribunal, and
defeat its essential object and purpose. . . To admit that a State holding such
documents may unilaterally assert national security claims and refuse to surrender
those documents could lead to the stultification of international criminal -24-
proceedings: . . . The very raison d'êtreof the International Tribunal would then be
undermined."
The present case is not to be confnsed with the Arbitration
16. It is against this background that the present case has been commenced in this Court. It
is important that the two cases should not be confused. The Arbitration relates to Timor-Leste's
contention that Australia's conduct during the negotiations for the CMATS Treaty has rendered
that treaty invalid. This would necessarily carry with it a finding that the duration article of the
Timor Sea Treaty- the later treaty- remains unchanged. It is this consequence that is in dispute
between the two Parties. The present case is quite distinct. It is one in which Timor-Leste is
complaining of the seizure of its property and is seeking the recovery of the documents that were
held on its behalf by Mr. Collaery. The reason for the present request for provisional measures is
that Timor-Leste abjects to any further time being given for the study of the documents by the
Australian authorities with unforeseeable detrimental consequences and associated irreparable
harm. To that end, Timor-Leste seeks either the immediate return of the materials and of any
copies that Australia may have made of them, or that they should ali be sealed immediately and
made inaccessible to the Australian authorities, including of course those concerned with the
conduct of the pending Arbitration. These ends could be furthered either by forthwith returning the
documents to Mr. Collaery's office or by depositing them for safe keeping elsewhere as may be
prescribed bythe Court.
The consequence of the seizure
---------------------~----L1.-The-consequence-of-the-initiaLseizure-Îs-undoubtedly.-that-Australia-has-placeditself-in-a-----
position of considerable advantage, bath inthe pending Arbitration and in a whole range of matters
involved in relations betweenTimor-Leste and Australia. Notable amongst these inthe foreseeable
future will, as 1 have-already mentioned, be the neg----ti-~--that must take place betw-en
Timor-Leste and Australia regarding maritime delimitation and access to maritime resources. It
needs to be emphasized that the present proceedings impact only incidentally on the ongoing
Arbitration about the effect on Article 23 of the Timor Sea Treaty on the terms of the
CMATS Treaty. They extend in their significance much further into the future. It is simply
unconscionable that one party to negotiations or litigation should be able to place itself by these -25-
means in such a position of advantage over the other. What has happened violates fundamental
principles governing the conduct of negotiations and litigation. It totally destroys the equality and
good faith that must prevail between the Parties. And I venture to hope that the Court will say so.
18. This concludes what I have to say about the background to the present request. I must
now turn to the substantive aspects of this request for interim measures of protection. Sorne
aspects ofwhat I am about to say will also be elaborated by Sir Michael Wood. I have not got very
far to go but I would be very grateful if the Court would give me a two minute respite to collect
myself. Thank you.
The PRESIDENT: Thank you, Sir Elihu. In view of your request, I suspend the sitting for
five minutes. The Court is going to retire.
The Court adjournedjrom 11.20 a.m. to 11.30 a.m.
The PRESIDENT: Please be seated. The hearing is resumed and 1give the floor to Sir Elihu
to continue. You have the floor, Sir.
Sir Elihu LAUTERPACHT: Mr. President, 1thank the Court and yourself for allowing me
this brief break. 1must now turn to the substantive aspects of the request. Sorne aspects of what 1
am about to say will also be elaborated by Sir Michael Wood.
Jurisdiction
19. The first item to be mentioned relates to thejurisdiction ofthe Court. Both Parties have
made declarations under the Optional Clause of Article 36 of the Statute ofthe Court. They have
thus conferred on the Court compulsory jurisdiction to deal with this matter. Although Australia
has made certain reservations to its acceptance, none of them are relevant to the present case. It is
not a case about maritime delimitation and it has not been commenced by Timor-Leste within the
twelve months after the filing of its own declaration. The jurisdictional link appears to be fully
effective. 1 need not take further time of the Court in connection with it. Although
Sir Michael Wood will say a bit more aboutit presently. -26-
1move to the important heading of the "Irrelevance of the Rule Relating to the Exhaustion of
Local Remedies".
Irrelevance of the Rule Relating to the Exhaustion of Local Remedies
20. Australia has given great prominence in its Written Observations to the availability of
remedies in the Australian legal system. This persistent assertion of the relevance of local remedies
calls for a clear and emphatic rejection. This rule has no application here. The rule relates to cases
in which a State seeks to protect the interests of one of its nationals with a view to ensuring that the
national concerned has ex.hausted such remedies as may be available to him under the law of the
State which has harmed him. lt has no relevance where a State asserts its own rights against the
State that has harmed it. For example, in the Corfu Channel case, in which Britain brought
proceedings against Albania in respect of the damage done to British warships in Albanian
territorial waters, no suggestion was made that Britain should first pursue a remedy in the Albanian
courts. Observations to the same effect may also be found in the Arrest Warrant case where, in
response to the Belgian argument that the Congo should have ex.hausted remedies in Belgium, the
Court said:
"[a]s the Congo is not acting in the context of protection of one of its nationals,
Belgium cannat rely upon the rules relating to the exhaustion of local remedies ...
Belgium accepts that, on the date on which the Congo filed the Application instituting
proceedings, the Congo had a direct legal interest in the matter, and was asserting a
Arr-or.:.\- Wa.4n:..claim in its own name." (ArmedActirities on the Territory qfthe Congo (Democratie
"" Av<'t\-::(~~ua. .(_r.ub/.iQ.jthr; Cau.g.av T.Jg.audaJ,Judgment, L C.J.Reports 2002, pp. 17-18,
~p..o l :~,.\1 1.c. para. 40.)
~c.J~rn}
···· ····-·:-:::·-::::-:simitarly;:m::-tfie7lvëna·cas(5::-tm~- -:coü--------:~----------
"Mexico may, in submitting a claim in its own name, request the Court to rule on the
violation of rights which it claims to have suffered bath directly and through the
violation of individual rights conferred on Mexican nationals under Article 3(b).)
The duty to exhaust local remedies does not apply to such a request."(Avena and
Other Mexican Nationals (Mexico v. United States of America), Judgment,
-- ------ l.-G.J.-Reports2004,-p.-'J6c-)------------- ---- --------------------------------------
Object of the Present Request
21. I venture to suggest that the abject of the present request is pretty obvioIt is to
prevent with immediacy Australia from deriving any further benefit from the internationally illegal -27-
seizure pending the Court's final determination of the application m the principal action
commenced in December.
Plausible Character of the Rights for which Protection is being Sought
22. As the Court has stated in the past, the Court must be concerned to preserve by the
provisional measures the rights which may subsequently be adjudged by the Court. To this end, the
Court must exercise its power only if it is satisfied that the rights asserted by a 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"
(Construction of a Raad in Costa Rica along the San Juan River (Nicaragua v. Costa Rica);
Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Request
presented by Nicaragua for the indication of Provisional Measures, Order of 13 December 2013,
para. 16).
23. The rights claimed by Timor-Leste in the principal action consist of the protection of its
title to the material heldn Mr. Collaery's office on behalf of Timor-Leste relating to legal issues of
concern to Timor-Leste and related to specifie issues on which Timor-Leste has asked Mr. Collaery
to act or advise. Sorne of the issues in question are ones between Timor-Leste and Australia
stretching back to Timor-Leste's accession to independence in 2002. As I have already said, these
are principally issues relating to the resources of the Timor Sea and their division between
Timor-Leste and Australia, as weil as by no means unimportant associated issues relating to the
construction of pipelines and the disposai ofhelium gas.
24. There can be no real doubt that these documents belong to the Government of
Timor-Leste. Although in the custody of Mr. Collaery, they were generated in implementation of
either general or particular instructions given to Mr. Collaery by the Timor-Leste Government. As
1have already said, they were not materials over which Mr. Collaery had any right to dispose, or
the contents of which he was free to divulge to others, save with the authority of the Timor-Leste
Govemment.
25. As to plausibility, given the natureof the principal claim and the indubitable fact that
Timor-Leste is a sovereign State recognized by Austra]ia, its property rights are entitled to full -28-
respect on the international plane in whatever State they may be located. It is therefore submitted
that the Timorese daim to title satisfies the requirement of plausibility required by the Court. The
Timorese daim to entitlement to protection is not dependent upon Australian law but on
international law.lt is an aspect of Timorese sovereigntyThe status of the documents is
analogous to documents in the possession of a foreign diplomatie or consular missioThe
Timorese rights are, moreover, entitled to recognition no matter what special provisions may be
asserted by Australian law against them.
The Link between the Measures Sought and the Rights which form the Subject
of the Present Case
26. The Court has also stressed that there must exist a link between the rights for which
protection is sought and the rights which are the subject of the principal daim. In the present case,
such a link is virtually self-evident. The principal action is one in which Timor-Leste seeks the
return of the materials seized on 3 December 2013. The daim that Timor-Leste now advances in
the present request is closely relatelt is set out in paragraph 10 of the Request filed on
17 December. I need only read subparagraphs (a), (b) and (e) ofparagraph 10..
Subparagraph(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."
Subparagraph (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,
----------~ -_-oc-th-e-jnformationc_ontaine_djn_whichit_has_dis.do_s.e_ ____orJransmitte_d_tp_anyp_~rs_o__n,_wheJhe_r_or_
not such person is employed by or holds office in any organ of the Australian State or of any
third State, and (ii) a list of the identities or descriptions of and current positions held by such
persons."
Subparagraph (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 or outside Australia or Timor-Leste."
Accordingly, Timor-Leste submits that there exists the necessary link between the rights now
asserted in the present proceedings and rights daimed in the principal action. -29-
Risk of irreparable prejudice and injury
27. I turn now to those terms of Article 41 of the Statute of the Court that grant to the Court
the power to indicate provisional measures when irreparable damage could be caused to the rights
which are the subject of the principal case.
28. The reason why the principal action has been brought is that Australia should not be
allowed to study the contents of the documents that have been seized. Timor-Leste is entitled to
recognition and protection of its interests. It will require no exercise of imagination on the part of
the Court to envisage the disadvantage at which Timor-Leste is placed by the fact that Australia
may have learned the specifies of the advice that Timor-Leste may have been given in recent years
regarding the factors relevant to the assertion of its claims to an acceptable maritime boundary
between it and Australia and especially the terms on which, if at ali, a compromise might be
reached.
29. If Australia has already obtained from these materials information bearing on these
matters it is, to say the least, unfortunate and any knowledge so gained should be sanctioned. The
same is true if Australia has copied the materials. The purpose of the present proceedings is to
secure the protection of the Court against these risks now. If such protection is deferred until the
close of the main proceedings, perhaps a year or more away at the very least, the harm done to
Timor-Leste becomes even more grave. It is possible that the harm that could be done has already
been done but that cannot be assumed. Moreover, in so far as harm can yet be done, it will be
irreparable. It is to be hoped that the Court may even now order the return of the documents and
prohibit the making of any copies, in this way sorne of the harm might be mitigated.
Urgency
30. To echo the words of the Court in the Costa Rica casé the Court can exercise its power
to indicate provisional measures if there is urgency "in the sense that there is a real and imminent
risk that irreparable prejudice may be caused to the rights in dispute before the Court has given its
final decision".
6
Certain Activities carried oby Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional
Measures, Order of8 March 2011, I.C.J. Reports 20(!),p. 2para.64. -30-
31. It is submitted that urgency of this kind evidently exists in the present case. Australia
should not learn the contents of the materials seized. It cannat be said on behalf of Australia that it
has already studied the material and gathered from it ali the knowledge that it requires of
Timor-Leste's position in relation to the issues already or potentially in dispute. That would be for
Australia to admit that prejudice has already been caused to Timor-Leste. If the Court were to
overlook this fact and to hold that what has been done cannat be undone and is therefore beyond
the reach the Court this would amount to condonation of an illegal act. This, 1 respectfully
suggest, an impression which this Court is unlikely to wish to convey. Nor would therebe room
for reparation by Australia in the form of payment of damages. A monetary penalty would simply
not be enough and would be read worldwide as a licence to commit many other types of wrong. 1
venture to submit that what is required is a clear, firm and severe condemnation of what Australia
has done, coupled with a requirement that everything it has taken from Mr. Collaery's office should
immediately be listed and securely placed in boThese boxes or bags should
themselves be sealed and then, at the expense of the Australian Government, promptly delivered
into the customary of the International Court of Justice. Timor-Leste's needs are urgent.
32. Before 1close 1should perhaps devote a few more words to the relationship between the
measures sought in the present request and the relief sought in the principal action. lt may perhaps
tt..."\.."":.""
be said against Timor-Leste that if the Court grants the relief now sought in the presentcAp)3lietttiotTI
there will be little if anything left for the Court to decide in the principal action. That is simply not
the case. The provisional measures that Timor-Leste seeks are quite different from the remedies
~~~-~-----------~~---~---.-~--~----~~~~----~~~-~~-~~~------------~
~________ ~~ojiglifJn_~lli~Q!ifu~Q!-Q9~~<fi~ sge~:k-]-!id]!CiI!if~~Q~~r·- -
declarations that the seizure and continuing detention of the documents and data violates
7
international Timor-Leste seeks the immediate return of ali the documents and data to
Timor-Lestltmay be appropriate to recall that the Applicationin the main case contains a
request that Australia should afford satisfactionformai apolo•y and costs
Application, FiranSecond.
Application, Third.Il,
9
Application, Fourth.l, - 31 -
33. It cannat be argued that the present request should be disregarded and that Timor-Leste
should be left to the relief that it seeks in the principal action. The facts do not permit this
conclusion to be drawn. Having regard to the current pressure on the Court's time, the principal
case is unlikely to be beard and decided in Jess than a year to 18 months, that is before the middle
of 2015. If the seized materials are left in Australian hands and open to study for ali that period,
the rights of Timor-Leste will inevitably suffer. The alternatives are, therefore, the following.
First, the Court may accept the force of the present request and grant Timor-Leste the immediate
protection which it seeks and needs. Or, second, the Court may reject the request, in which case
the wrong done to Timor-Leste will persist until the judgment in the main case. By then it will be
virtually too late for the judgment to provide the protection now sought by Timor-Leste.
Summary and conclusions
34. So, Mr. President at this point, I reach my summary and conclusions, but it may be
convenient if I turn in summary fashion to certain aspects of the Australian Written Observations
which require comment.
(1) Australia fails to give any consideration to the fact that the materials seized are the property of
Timor-Leste. The Australian Observations fail to recognize that the seizure of another State's
property is as much a violation of international law as would be the seizure of any part of
another State's territory. It is a matter of scale, not of quality.
(2) Secondly "national security" cannot be invoked to preclude consideration of the matter without
sorne specification of the nature ofthe national security interest said to be involved, thus giving
the Court the opportunity to make its own decision about that aspect of the matter.
(3) It should not be overlooked that the Australian conduct in Timor-Leste in 2004-2006 was itself
a major breach by the Australian participants of the criminal law of Timor-Leste. Indeed, it
may even also have been a violation of the Australian law itself governing the behaviour of its
security services.
(4) The suggestion that Timor-Leste might have sought interim measures from the arbitral tribunal
sitting in the Arbitration is not really to the point as the jurisdiction of the arbitral tribunal is -32-
limited to the matters in issue in that arbitration. They do not extend to the issue of maritime
delimitationtWeenthe two States.
(5) Australia's whole case founders on its insistence that Australian law governs the matter and
that the Australian legal systemweil equipped to deal with As already stated,
Timor-Leste's rights are foundedernational law. No disrespect to Australia is intended by
Timor-Leste's insistence that the present caseo be determined solely as a matter of
international law. A sovereign State is not required to submit to the law of another State for the
maintenanceof its property rights. It is of course open to Australia itself, if it thinks that it has
anything to gain by doing so, to apply to the arbitral tribunal forre restraining
Timor-Leste from pursuing the present request to the International Courtustralia
may claim that it bears on matters subject to the jurisdictionl tribunal. But most
unlikely.
(6) Timor-Leste may already have been seriously harmed by the fact that Australia admits that
sorneof the hard-copy materials were briefly inspected.
35.So Mr. President, Members ofthe Court, with your leave, I would now wish to give way
toSir Michael Wood who will develop the authorities supportive ofthe submissions I have made. I
would be gratefulou would now cali upon Sir Michael.
The PRESIDENT: Thank you very much, Professor Lauterpacht, and I give the floor to
Sir Michael Wood. In view of the break the Court took, Sir Michael, I would appreciate if you
........c.:Q.llJ<:l~finisttbY:21>~minl1tS= J=~::P=~:~t~!=SJ=:=·· n-QQ-H-::--·:P-JSJJ!~t::;::-:::-_~=~=~=-==:~~~=-=-=:=::::~-
Sir Michael WOOD:
APPLICATION OF THE LAW AND PRACTICE ON PROVISIONAL MEASURES
1. Mr. President, Members ofthe Cotarvery great honour to appearyoufand to
do so on behalf of the Democratie Republic of Timor-Leste.
1. Introduction
2. There are three principal points that I wish to First, as Sir Elihu has just
explained, that the rightsmor-Leste at issue in this case are rights under international law. -33-
They are rights under international law to the inviolability and immunity of its property, fftftnl t-t
particular\e':liits documents and data(eleetfonie datai. This being the case, references to remedieslo-\ \-\
under Australian law are irrelevant.
3. Second, the urgency of the provisional measures sought. nie undertakings given so far on
behalf of Australia are inadequate to safeguard Timor-Leste's important interests pending the
Court's final decision, interests thato far wider than the arbitration proceedings described by my
colleague, friend and mentor, Sir Elihu Lauterpacht.
4. And, third, that the provisional measures we seek are appropriate to safeguard those
interests, without interfering with the proper requirementsf Australia's national security.
5. I shall consider in turn the conditions for provisional measures: prima facie jurisdiction,
(i) Q)
there is very little more tosay the rights in need of prote acd rik o fir~eparable prejudice. Qh..J.,.Kl--..c.:.
Then 1 shall address, brietly, what little Australia has to say on international law in its Written
Observations.
10
6. Mr. President, the Registrar has read out the precise terms of the provisional measures •
In brief, we ask the Court to indicate that ali documents and data- electronic data, that is, and 1
will refer to them as "documents" for short- seized from its lawyer's offices in Canberra on
11
3 December 2013 should be sealed and delivered into the hands of this Court ; that Australia
should inform Timor-Leste of ali and any disclosures and copies it has made of the documents 1;
13
that Australia should use every effort to destroy such copies ; and that Australia should give an
assurance that it will not intercept communications between Timor-Leste and its legaladvisers 1•
7. It will, of course, be for the Court to decide the precise tenns of the measures so ordered.
The essence of what we seek is to ensure that the illegally seized materials should not be made
available to any person having any role in connection with Australian diplomatie or commercial
1Request for the indication of provisionmeasures submitted by the Govemment of Timor-Leste,
17 December 2013, para. 1O.
1/bid.para. 10 (a).
12
/bid.paras. (b)and (c).
13
/bid.para. 1(d).
1/bid.para. 10 (e). -34-
·relations with Timor-Leste over the Timor Sea and its resources. This includes, but is not Iimited
to, any person having any role in relation to the Arbitration.
ll. Australia's insistence upon domestic remedies
8. In its Written Observations, Australia lays great emphasis on the position under Australian
law 1• Yet- as Sir Elihu hasjust explained- it is, of course, international law that applies to the
dispute between Timor-Leste and Australia, the subject ofthese proceedings. Australia's view that
its domestic law bas priority over international law was foreshadowed in its letter of 24 December,
which is at tab 10 in the folders, in which the Australian Government Solicitor ("AGS") said:
"The Government of Timor-Leste has bad ample opportunity to commence
domestic proceedings to make any daims it wishes to .make and has not done so
despite 20 days having passed since the execution of the warrant on 3 December 2013.
If it does intend to make any claim under domestic law it should do so weil prior to
16
22 January 2014."
:tK,
H Apparently a reference to the present hearing. ~ letter of 14 January 2014, k says much the
same thing.
9. Australia appears to be saying that a sovereign State, the Democratie Republic of
Timor-Leste, must place itself in the bands of the Australian authorities or courts to vindicate its
sovereign rights to the inviolability of its State documents, rights that, we say, have been violated
by the Australian State acting through its Attorney-General and itsSecurity ~Intelligence
Grganization.
10. There is, of course, no requirement under international law that Timor-Leste should
·······snbjëccitselftoAüstralianâomesticproc·essesiif~ordert ...üpliold.·iüfrightsiü1deYinternationai::ta:w
As Sir Elihu bas explained, this is not a situation where the rule of exhaustion of local remedies
applies, even if such remedies might offer an effective remedy, which must be highly questionable
in this case17• Nor, with respect, is the possible availability of an action under Australian law, a
relevant ''factor''in the decision whether or not fo il1dicate provisional measures, as Australia
18
seems to suggest in its Written Observations •
1See for example, Written Observations of Australia (WOA), p(a),42-43, 45, 49-57, 75 (j).
16
AGS letter of24 December 2013, para. 5.
17
WOA, paras. 53-57, 75
1/bid.paras. 48, 52, 57, 75. -35-
m. Conditions for the indication of provisional measures
11. Mr. President, I shaH turn quickly to the conditions necessary for the indication of
provisional measures.
12. This Court and its predecessor, the Permanent Court, have long recognized
"the principle universally accepted by international tribunals and likewise laid
down in many conventions . . . to the effect that the parties to a case must
abstain from any measure capable of exercising a prejudicial effect in regard to
the execution of the decision to be given, and, in general, not to allow any step
of any kind to be taken which might aggravate or extend the dispute"
(Electricity Company of Sofia and Bulgaria, Order of 5 December 1939,
P.C.LJ SeriesAIB,No. 79, p. 199)19•
(a) Prima faciejurisdiction
13. The Court will first wish to satisfy itselfthat it has prima facie jurisdiction. In its Written
Observations, Australia refers to this requiremene , and does not suggest that it is not fulfilled. It
21
does, however, hint at an "admissibility" issue , but does not develop the point. In any event, we
would submit that your case law requires prima facie jurisdiction; there is no case law to the effect
that prima facie admissibility is also required. The authorities cited by Australia on this point are,
2
in our submission, at best equivocae •
14. Australia's illegal actions of 3 December 2013 have given nse to a breach of an
international obligation having a continuing character. They were raised by Timor-Leste during the
Procedural Hearing of the Arbitral Tribunal on 5 December 2013 23,in so far as they related to those
proceedings. But, as we have explained, it is important to note that the documents seized go far
beyond those relating to the arbitral proceedings. So Timor-Leste wrote on 10 December 2013 to
the Australian Attorney-General- that is at tab 3. And as you can see, the letter requested inter
alia the return of the originals of the documents seized from its lawyer's office on
3 December 2013, documents that Timor-Leste had "the right to protect under international law",
together with a complete schedule of the seized documents; and to confirm that it had "destroy[ed]
19LaGrand (Germany v. United States of America), JudgmenI.C.J Reports 2001, p. 503, para. 103.
20
WOA, para 70.
21
WOA, para 70.
22The references to Thirlway do not support the proposition for which they are cited. At p. 936 Thirlway is
entirely inconclusive, as he is at p. 1779 (which Australia omits to mention in its Note 97).
23WOA, para. 14 and Ann. 9. -36-
beyond recovery any and ali copies of the [seized] Documents and Data that ha[d] already been
Al\
made". A Note Verbale was also sent on \1-6\Decemberto which no satisfactory response has been
received.
15. The present dispute crystallized at the latest when, in its reply letter of 16 December,
whichis at tab 6, the Australian Government Solicitor ("AGS") asserted that the material was not
seized from the Governmentmor-Leste, and that Timor-Leste had "pointed to no legal
entitlement which wouldt" the return of the material to that Government. Timor-Leste was
given untilecember to take action to enforce any legal rights "failing this, our client [that is
Australwiltake such steps as it considers appropriate in relation to the Seized Material without
furthertice". It was at this point that Timor-Leste decided that, in view of the seriousness and
urgencyf the situation, it was left with no option but to institute the present proceedings, invoking
the declarationse two States under the Oplnour submissioand Australia
does not appear to disputeis clear that the Court has prima facie jurisdiction under the
Optional Clause, which covers the wholeispute submitted to the Court in these
proceedings. Elihu has already said what needs to be said on this matter.
(b) Tlze riglzts wlwse protection is souglzt and tlze measures requested
16. Mr. President, Members of the Court, 1now turn to the second condition for provisional
measu mostecetlyat racapr15if burerddof 13 December last year in
Nicaragv.Costa Rica.
precisely to protect the rightsste which are the subject of the proceedings: to ensure
that its property should not be subjected to continuing measures that contravene its rights as a
sovereign State, including the inviolability and their entitlement to immunity from
measures ofconstraint.
18. 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 inviolabilityr-Leste's State papers and violated the immunity which
Timor-Leste entitled to under international law. - 37-
19. The principle ofthe inviolability ofState property and papers is a general principle that
underlies and explains many rules in particular fields, such as State immunity and diplomatie and
consular immunities. So far as concerns State immunity, it will be recalled that the 2004 United
Nations Convention is entitled "United Nations Convention on the Jurisdictional Immunities of
States and Their Property".
20. The immunity granted to State property is intended to safeguard such property at ali
stages of proceedings, from their initiation and, indeed, from the investigation stage, through to the
execution of judgments 2• Moreover, Article 2.1 (a) of the 2004 United Nations Convention
defines the term "court" as meaning "any organ of a State, however named, entitled to exercise
judicial functions". The tenn "judicial functions" is not itself defined. This was deliberate, since,
as the ILC's Commentary explains, "such functions vary under different constitutional and legal
25
systems" • The Commentary explains the tenn "court" broadly. In particular, it states that the
definition of"court" in Article 2.1 (a) "may, under different constitutional and legal systems, cover
the exercise of the power to order or adopt enforcement measures (sometimes called 'quasi-judicial
functions') by specifie administrative organs of the State" 26• And it also explained that- this is
the Commentary:
"The expression 'jurisdictional immunities' ... is used not only in relation to
the right of sovereig:n States to exemption from the exercise of the power to
adjudicate, normally assumed by the judiciary or magistrate within a legal system of
the territorial State, but also in relation to the non-exercise of ali other administrative
and executive powers, by whatever measures or procedures and by whatever
27
authorities ofthe territorial State, in relation to ajudicial proceeding."
21. The issuing of a search warrant by the Attorney-General is no different from the issuing
of such a warrant by a court or other administrative body. It seems clear from article 25 of the
Australian Security Intelligence Organisation Act, and from the language ofthe warrant itself, that
in issuing the warrant the Attorney-General was acting quasi-judicially. The warrant purports to
have been issued for reasons of national security and not in the course of court proceedings in a
24Draft Article 1Commentary(2), Yearbook of the International Law Commission (YILC)1991, Vol. II, Part II,
p. 13.
25
Draft Article 2 Commentary (3),YILC, 1991, Vol. II, Part 11,p. 14; R. O'Keefe,C. TamThe United Nations
Convention on Jurisdictional Jmmzmities of States and Their Property: A Commentw2013, pp. 45-46.
26
DraftArticle2 Commentary(4), YILC, 1991,Vol.11,Part 11,p. 14.
27
DraftArticle 1Commentary(2), YILC, 1991,Vol. 11,Part 11,p. 13. -38-
narrow sense (though Australia does now seem to suggest that intelligence acquired under the
warrant may be relevant also for a criminal•But this does not make the search and
seizure any less a breach inviolability and immunity to which Timor-Leste is entitled under
international law.
22.So our first ptha~sis wasczrudrot pursuant to a warrant issued by a "court"
H..c..
within the meaning ofkustomary international law on State immunity as retlected in the United
Nations ConventioEven if this were not so, the seizure would be covered by those wider
principles that underlie the lawmmunity, including the inviolability of State papers. The
fact that practice relating tounity mostly concerns ordinary court proceedings does not
mean that interference by the Executive, including State property, is not precluded by
the inviolability to which aState is entitled under international law. The underlying principle of
international law prohibits one State from interfering with property of another State.
23. Inviolability and immunity apply without question to a State's documents in the
possession its lawyer. The basic rule laid down in the 2004 United Nations Convention is that a
29
State and its property enjoy•The Convention then goes on to list exceptions to the rule.
None applyin this casThere is no exception for property in the possession of a lawyer
representing thee, or property created for legal purposes in consultation with legal counsel.
24. Australia claims that seizureoperty in the possession of Timor-Leste's attorney
was carried out accordance with Australian law, and that any challenge should therefore be
under Australian law. But that is not how the law ofState immunity works. Article 6 ofthe United
Australia is obliged to "ensure that its courts determine on their own initiative that the immunity of
30
that other State under Article 5 is •esWhen the authority executing quasi-judicial
functionss the Attorney-General, a government minister, the fulfilment of that task should be
Sl- c~~r\ -raightforwardjMPresid ineilaily end immunity of State property and papers is
l'l'.:Je:..
ç..c:o e.pricl:sefortinineratonplonventions in particular fields, such as diplomatie and consular
2WOA, para. 55.
29
Art. 5.
30Ar6.1. -39-
law, the law of special missions, and the law of international organizations, the provisions of which
reflect customary international law. Article 24 of the Vienna Convention on Diplomatie Relations
provides that "[t]he archives and documents of the mission shall be inviolable at any time and
wherever they may be." And Article 27, paragraph 2 provides that "[t]he official correspondence
of the mission shall be inviolable. Official correspondence means ali correspondence relating to
ar.~
the mission and its functions." The Vienna Convention on Consular Relation Ne~wt hoerk
Jf'C"'l"'i!"('"'
31
Convention on Special Missions make similar provision ; the former contains in its articl1/(k J
broad definition of consular archives, which may indicate the scope of official archives more
U )fr. In her commentary on article 27, paragraph 2, of the Vienna Convention on Diplomatie
Relations, Professor Eileen Denza explains that "[c]orrespondence from the sending government to
its mission would also at least arguably be entitled to protection as archives of a foreig11state
33
government" • She goes on to make the point that "it may not be clear whether it originates from
the sending government and would thus be entitled to inviolability as archives of a foreign
34
sovereign government" •
35
2.=\):(). Denza refers to a case involving government papers in the hands of contractors •
In 2002 a United States House of Representatives Committee considered the status of government
documents held by professional consultants. The consultants in question were lobbyists or public
6
relations advisers. The State Department Legal Adviser made a statemenë ,which you will find at
tab 19. Among other things, Mr. Taft referred to information provided by the government to
outside contractors being used for embassy construction, and said that if such contractors were
pressed by the host State to provide such information
31Vienna Convention on Consular Relations, art. 33; Convention on Special Missions, art. 26.
32
E. Denza, Diplomatie Law, 3rd ed. 2008, p. 162JQuigley, Consular Law and Praetiee (3rd ed., 2008),
p. 392.
33
E. Denza, Diplomatie Law, 3rd ed. 2008, p. 226.
34/bid.
35/bid., pp. 197-199.
362002 Digest of United States Praetiee in International Law, pp. 567-570. -40-
"[w]e would look seriously at asserting a claim to privilege, or inviolability, under the
Vienna Convention. We would also consider other possible priviteges and
37
protections, such as state secrets, that might apply to these and other situations."
And Mr. Taft continued,
"The issue the Committee posed . . . is whether these materials retain that
immunity under the Convention when they are given to, or relied upon by, third
38
parties.... this is a novel and complex question."
Mr. President, even though the inquiry primarity concerned embassy papers, the underlying
issues raised and the position taken by the State Department Legal Adviser would seem to be
applicable to government papers generally in the hands of contractors.
2.~ }?(. The learned authors of Oppenheim, speaking of agents without diplomatie or consular
character, note that, white no distinct rules concerning their privileges and immunities have grown
39
up, in practice, "[t]heir persans and official papers are presumably entitled to immunity."
2,."\ ~ By way of a further example, I should mention a recent case. In tate November 2013,
Spanish officiais opened bags (not, 1understand it, diplomatie bags) containing British Government
papers that were transiting Spain between Gibraltar and London. In a Written Statement to
Parliament, on 27 November 2013, which you will find at tab 17, a Foreign Office Minister said
"On Friday 22 November two UK Government bags containing official
correspondence and communications, and clearly marked as such, were opened by
Spanish officiais, white the bags were in transit. This represents a serious interference
with the official correspondence and property of Her Majesty's Government, and
therefore a breach of bath the principles underlying the Vienna convention on
diplomatie relations and the principle of state immunity. We take any infringement of
these principles very seriously."40
3::::')19.These examples reflect the fundamental principle that inviolabitity applies to State
narrow sense, or archives of a diplomatie mission or consular post.
3J\ ;M'. International tribunats have recognized that legal professional privilege is a general
principle of law. In the Bankfor International Settlements case, the Tribunal stated that
37
2002 Digest of United States Practice in International Law, p. 569.
3Ibid., p. 570.
30ppenheim 'sInternational Law, Vol I, 9th ed., 1992, R. Jennings, A. Watts (eds.), p. 1175.
40
Hansard, 27 November 2013, Cols. 17-18WS. -41 -
"At the core of the attorney-client privilege in bath domestic and international
law is the appreciation that those who must make decisions on their own or others'
behalf are entitled to seek and receive legal advice and that the provision full
canvass of legal options and the exploration and evaluation of their legal implications
would be chilled, were counsel and their clients not assuredvance that the advice
proffered, along with41ommunications related toit, would remain confidential and
immune to discovery."
''In bath domestic andintern asthat Tibonansaad.f~law .x.
~..Ar\.<~
';>t)r. Libananco v. ~. another case,;was an investment treaty case, and the company x"><
Libananco was suing the Government of Turkey. The distinguished tribunal was faced with
allegationsof interception of communications, by Turkey, of communications between the
Claimant and its legal advisers, allegations whichn its own words- "the Tribunal was bound
42
to treat with the utmostriousness" .
'?>>JZ.We have included an extract from the Libananco Decision on Preliminary Issues at
tab 18. We can see from the decision that counsel for the Government behaved entirely properly,
and refused to look at anyof the intercepted material (which included a draft of the Claimant's
Memorialt • One would expect no less, which is why the assurances given so far by Australia in
respect of the legal papers seized in the present case are hardly surprisinNevertheless, the
Libananco Tribunal went on to recall, in the strongest terms, the fundamental principles at stake
"basic procedural fairness, respect for confidentiality and legal privilege ... ; the right
of parties b44h to seek advice and to advance their respective cases freely and without
interference"•
The Tribunal further added that
"The Tribunal would express the principle as being that parties have an
obligation to arbitrate fairly and in good faith and that an arbitral tribunal has the
inherent jurisdiction to ensure that this obligationomplied with; this principle
applies in ali arbitration, including investment arbitration, and to ali parties, including
States (even in the exercise oftheir sovereign powers)."
4Bank for International Settlcase (PCA), Procedural Order No. 6, Il June 2002cited with
approval Vito G.GalvoGovernment ofCana(PCA-NAFTA), Procedural OrderNo. 3, 8 April2009, para. 49.
42
Libananco Holdings Co. Limited v. Republic ofTurkey, ICSID Case no. ARB/06/8, Decision on Preliminary
Issues, 23 June8,para. 74.
4Ibid.para. 75.
4Ibid.para. 78.
45
Ibid.para. 78. -42-
~~}I f .reover, rather like in our case, in Libananco the Respondent Government tried to
claim that its actions must be excused as they were done in pursuit of legitimate exercise of its
crirriiriallaw. The Tribunal answered this argument ràther bluntly:
"The right and duty to investigate crime ... cannat mean that the investigative
power may be exercised without regard to other rights and d46ies, or that, by starting a
criminal investigation, a State may baulk an ICSIDrbitration."
~ M. This is precisely the point. Whether Australia is entitled to take action under its domestic
47
law in the name of national security, or for the enforcement of its criminal l,is immaterial to
Timor-Leste's rights under international law, both to the inviolability of its property and to its
entitlement to legal privilege.
~ 7t5 .efore leaving Libananco, I would draw your attention to two interesting aspects of the
Orders made by the Tribunal, which you will find at the tab. At paragraph 1.1 (1) on page 40 of the
Decision, the Tribunal ordered that
"Subject to paragraph 1.2 below, the Respondent must not intercept or record
communications between legal counsel for the Claimant on the one hand and
48
representatives of the Claimant and other persans in Turkey on the other hand."
And at paragraph 1.2 on page 42 the Tribunal said:
"The Tribunal recognizes that the Respondent [Turkey] may in the legitimate
exercise of its sovereign powers conduct investigations into criminal activities in
Turkey. The Respondent must, however, ensure that no information or documents
coming to the knowledge or into the possessionf its criminai investigation authorities
shall be made available to any persan having any role in the defence of this
49
arbitration."
3':})(). That was of course in the context of criminai investigations and an arbitration, and State
~pape r sre norin issue;···Nevertheless;the L;ibanancoTribunai's approaclrapplies···equallyto·a
national security investigation and to legal professional privilege going wider than the arbitration
><x proceedings. It also supports the final provisional measures sought by Timor-Leste in these
proceedings, namely that Australia give an assurance thatit will not intercept or cause or request
46
Libananco Holdings Co. Limited v. Republic of Turkey, ICSID Case no. ARB/06/8, Decision on Preliminmy
Issues, 23 June 2para. 79.
47
WOA, para. 55. See also Ann. 8 to Written ObservationSenator the Hon. George Brandis QC,
Attorney-General, "Ministerial Statement: Execution of ASIO Search Warrants", dated 4 December 2013.
48
Libananco Holdings Co. Limiv.Republic ofTurkey, ICSID Case no. ARB/06/8, Decision on Preliminmy
Issues, 23 June 2p. 40, point 1.1(1).
49
Ibid.p. 42, point 1.2. -43-
the interception of communications between Timor-Leste and its legal advisers, whether within or
outside Australia or Timor-Leste.
~? ,f. That legal professional privilege is a general principle of law is further supported,by the
case law of the European Court of Justice, in cases dealing with limits imposed on the power of the
European Commission to conduct certain investigations because of the confidentiality of written
50
communications between lawyers and their clients•
(c) Risk of irreparable prejudice and urgency
39 215 . r. President, the third condition for provisional measures is urgency. There must be a
riskof irreparable prejudice to the rights at issue in the proceedings. I refer you to paragraph 24 of
Nicaragua v. Costa Rica Order.
~o )19.I shall begin by making a short comment on Australia's curious position that when
deCidingon provisional measures, the Court should not be concerned with "past circumstances or
possible future circumstances". Mr. President, when the Court has to determine whether
"irreparable prejudice could be caused to rights", it must necessarily consider whether such
prejudice may occur inthe future.
~J~\ In this case, as Sir Elihu has explained, the urgency is clear. Timor-Leste is currently
considering, at the highest political leve!, asl as with its team of international lawyers, its
strategie and legal position vis-à-vis Australiarelation to the 2002 Timor Sea Treaty and the
2006CMATS.
L.ZM. So far as Timor-Leste can tell, and as Sir Elihu and I have described, the probability is
that virtually ail of the seized documents relate to Timor-Leste's legal strategy, including for the
Arbitration and for any future maritime negotiations. They are manifestly documentsthe utmost
sensitivity,n terms both ofTimor-Leste's international relations, but also domestically. And they
are documents that concern a matter of the highest importance, of existential importance for
Timor-Leste. A very large percentage of Timor-Leste's revenues derive from the oil and gas
5
°Case 155/79, AM & S Europe Limited v. Commission of the European Communities, Judgment of the Court of
18 May 1982;cited also in Case C-550/07 P, Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v. European
Commission,udgment of the Court (Grand Chamber) of 14 September 2010, paras. 41-42. -44-
sector. These matters are crucial to the future of Timor-Leste as aState and to the well-being of its
people.
Le~ ~ And not only are these documents of the utmost importance, time is of ttie essence if
irreparable damage is to be avoided. The written and oral proceedings in the Arbitration under the
Timor Sea Treaty are scheduled to conclude in early October of this year. Timor-Leste's wider
efforts to move forward on achieving an equitable solution in respect of the Timor Sea are being
side-tracked and delayed by Australia's current actions.
~l t1. Mr. President, at this point I was going to take you through the undertakings or
assurances that Australian officiais have given and show how far from adequate they are to protect
Timor-Leste's rights and interests in the present case, but they arehe folders and 1will just refer
to the key provision at this stage. Theey undertaking as we read it is in the letter of 24 December
which is at tab 10 and ifyou read that undertaking at paragraphs 2 and 3 1think you will see that it
really is not adequate to do what we say is needed. In the first place, those undertakings lack
binding force, at !east at the international levet.you make a provisional measure that would of
course, as you said in LaGrand, be binding in character and create a legal obligation for Australia.
Secondly, those undertakings are in serious respects more limited than the provisional measures we
have requested, they do not address at ali the wider issues going beyond the Arbitration. And
thirdly, those undertakings are expressed only to last until the present hearing. Clearly thatnot
adequate.
···~~-·····~·~---~-~--··----~ -·-~·JV~:A::ustralia's·Written:Observations:::=- :=:·::·.:~~-=
Mr. Chairman in conclusion I shall just say a few words about Australia's Written
Observations. There is not much to add what Sir Elihu has already said. 1would only say that we
do not necessarily agree withali that is said in the brief section of the Written Observations entitled
··"The -position·underinternational··law': A number·oflearned- authorities·are·cited;·butiftheyare
examined carefully they do not actually support the propositions for which Australia contends. To
take one example, Judge Treves' interesting article, read as a whole, does not support Australia's
51
bald assertion concerning the misuseof provisional measure requests •
51
WOA, para. 67. See, for example, the Treves article at pp. 476-477. -45-
L..l:. 52
~Atthe end of its Written Observations ,Australia lists eight "factors", as it calls them, or
"circumstances" which, it submits, mean that "the Court is not in a position where it could or
should indicate provisionaleasures". It will be clear from what Sir Elihu and 1have said that we
disagree. Turning to paragraph75 of Australia's Observations:
as to points(a) and (b), the fact that the documents seized were "brought within or created
within Australia" is irrelevant. lt does not amount to a waiver of the rights which Timor-Leste
has under international law in respect of its property. Were it otherwise, it is difficult to see
any foreign State seeking advicef lawyers in Australia.
As to (c), the Court should indeed be prudent, but national security and the enforcement of
criminal law are not sorne magic wand that make the rights and obligations of States under
international law vanish.
io i~
Asto (d), I hope that both ~pptlhation and Request and~ oralpresentation today we have
made clear the rights that are at issue.
As to (e), Australia's Written Observations completely overlook the fact that the documents
and data perused and seized extend far beyond anything thats relevant to the Arbitration. This
was made absolutely clear in the Application53 and in the Request and we have further
elaborated that point today.
As to (/), the existence of remedies under Australian law, even if they could be shown to be
effective,is not relevant in the present situation where a sovereign State complains about a
direct interference with its rights under international
As to (g) and (h), undertakings relating to legal advisers involved in the Timor Sea Treaty
Arbitration fall far short of what is required to protect Timor-Leste's rights at issue in the
present proceedings.
41-~ Mr. President, with apologies to the interpreters, I have come to the end of my
intervention, I thank you very much for your attention and that concludes our first round of
presentation.
52WOA, para. 75.
53
For example, Application, para. 6. -46-
The PRESIDENT: 1thank you very much, Sir Michael Wood. This ends the first round of
oral observations of the Democratie Republic of Timor-Leste. The Court will meet again
torilorrow, at 10 a.m. to hear the first round of oral observations of Australia. The sitting is closed.
The Court rose at 12.30 p.m.
.1
Public sitting held on Monday 20 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)