Corrigé
Corrected
CR2014/4
International Court Cour internationale
of Justice de Justice
THE HAGUE LAHAYE
YEAR2014
Public sitting
held on Wednesday 22 January 2014, at 5p.m., at the Peace Palace,
President Tomka presiding,
in the case concerninQuestions relating to the Seizure and Deteutiou
of Certain Documents and Data
(Timor-Leste v.Australia)
VERBATIM RECORD
ANNÉE2014
Audience publique
tenue le mercredi 22janvier014, à 17 heures, au Palais de la Paix,
sous la présidencede. Tomka, président,
en l'affaire relaàidesQuestions concernant la saisie et la détention
de certains documents et données
(Timor-Lestec. Australie)
COMPTE RENDU - 8 -
Present: President Tomka
Vice-President Sepùlveda-Amor
Judges Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
Xue
Donoghue
Gaja
Bhandari
Judges ad hoc Callinan
Cot
Registrar Couvreur -3-
Présents: M.
Tomka, président
M. Sepulveda-Amor, vice-président
MM. Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Greenwood
MmesXue
Donoghue
M. Gaja
M. Bhandari, juges
MM. Callinan
Cot,juges ad hoc
M. Couvreur, greffier -4-
The Government of Timor-Leste is represented by:
H.E. Mr. Joaquim A.M.L. da Fonseca, Ambassador of the Democratie Republic of Timor-Leste to
the United Kingdom,
as Agent;
H.E. Mr. JoséLuis Gutteres, Minister for Foreign Affairs and Co-operation;
H.E. Mr. Nelson dos Santos, Ambassador of the Democratie Republic of Timor-Leste to the
Kingdom ofBelgium and the European Union;
*
Sir Elihu Lauterpacht, C.B.E., Q.C. Honorary Professor of International Law, University of
Cambridge, member of the Institut de droit international, member of the English Bar,
Mr. Vaughan Lowe, Q.C., Emeritus Professor oflnternational Law, University of Oxford, member
of the English Bar,
Sir Michael Wood, K.C.M.G., Member of the International Law Commission, member of the
English Bar,
as Counsel and Advocates;
Ms Janet Legrand, Partner, DLA Piper UK LLP,
Ms Emma Martin, Associate, DLA Piper UK LLP,
Ms Jolan Draaisma, Senior Associate, Collaery Lawyers,
'1>fl\..."\.,
Mr. Andrew Legg,~, member of the English Bar,
as Counsel;
-,------------Mr:--Eran-Sthoeger;I::;I::;;M:;NewYorlcl:Jniversi1ySchool-
of-I:;aw;---_________ ,_
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. JoséLufs 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, associéeau Cabinet DLA Piper UK LLP,
Mme Emma Martin, collaboratrice au Cabinet DLA Piper UK LLP,
Mme Jolan Draaisma, collaboratrice principale au Cabinet Collaery Lawyers,
':!>'\..;\.
M. Andrew Legg, !Ph-:i3\,embre 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-General of Australia,
Mr. James Crawford, A.C., S.C., F.B.A, Whewell Professor of International Law, University of
Cambridge, member of the Institut de droit international, Barrister, Matrix Chambers, London,
Mr. Bill Campbell, Q.C., General Counsel (International Law), Attorney-General's Department,
Mr. Henry Burmester, A.O., Q.C., Special Counsel, Australian Government Solicitor,
as Counsel and Advocates;
Mr. Chester Brown, Professor of International Law and International Arbitration, University of
Sydney, Barrister, 7 Selbowne Chambers, 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:-Todd-~uinn:;-First-Secretary;Embassy-of-Australiain-the-K:ingdom-oftheNetherlands,
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 l'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'Université de
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 1'Attorney-General,
Mme Stephanie Ierino,juriste hors classe, services de l'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: Please be seated. The sitting is now open. The Court meets this
afternoon to hear the second round of oral observations for Australia on the Request for the
indication of provisional measures filed by Timor-Leste. My understanding is that the
Solicitor-General of Australia, Mr. Gleeson, is going to open the arguments for Australia. You
have the floor, Sir.
Mr. GLEESON:
Introduction
1. Thank you, Mr. President, Members of the Court. I will deal with ali matters, save for
plausibility, which Mr. Campbell will deal with. Let me start with one matter repeated by Sir Elihu
this morning from Monday, namely his assertion that Australia committed an act of espionage
against Timor-Leste in Dili in 2004. He asked Australia to admit and apologize for that act.
Ot\
2. There are two problems with that request. The first is the allegation of espionage is not es
issue before you, whereas it is an issue before the Tribunal. It should not be asserted in this Court
as a fact when it is irrelevant. Australia neither confirms nor denies that allegation, as is its right.
Second, it will not have escaped you this morning that, when the assertion was repeated, again no
evidence was pointed to in support of it. We ask you to dismiss that matter from your mind as
nothing more than an assertion to be considered elsewhere.
3. Might I say next that, as we did not hear much new this morning, I would propose to
Adequate protection of the arbitration
4. Could I turn first to the topic of the Arbitration and to Judge Cancado Trindade's
question', which I would seek--------er f----------e levet of principle and then at the level of
application. At the levet of principle, we would accept that, if a State engages in arbitration with
another State, and finds it necessary to take measures of national security which may bear on the
1 s.
Judge CarJÂadoTrindade: "What is the impact of a State's measures of alleged national security upon the\
conduction of arbitral proceedings between the Parties? ln particular, what is the effict or impact of seizure of N<:>
documents and data, in the circumstances of the present case, upon the settlement of an international dispute by ·,\-..),;~
negotiation and arbitra/ion?" -9-
arbitration, the State should, as a matter of prudence, if not strict law, take such steps as are
reasonable to limit the impacttional security measures on the arbitration. We accept, as
was put this moming, that to do otherwise would interfere with arbitration as a peaceful method
resolving inter-State 1 emphasize, the principle is qualified byTheasonableness.
circumstances may not always provide a perfect accommodation between the two interests
conflict and a State could not be asked absolutely to put on hold measures of national security
merely because it is brought to arbitration.
5. That is the general answer. The specifie answer is this: in the present case the measures
~4!..
of national security will have no ad\#Jtrbitratiofor three reasons. Firstly,
Timor-Leste's counsele Arbitration, on 5 December, accepted they have copies of the key
removed documents, including an affidavit from the person they describe
they have lodged with the case of disadvantage bas been made before you. Second, the
Attorney-General acted reasonably from therom the Ministerial Statement of
3
4 December, supplemented by un-erto ensure there would be no illegitimate advantage
to Australia by wayocuments being made available to the legal team in the Arbitration.
Wisely, with hindsight,cipated this problem might arise and he acted in advance to prevent
it. The third parte practical answer is that there is not a skerrick of evidence pointed to by
Timor-Leste to suggest the undertakings have not been honoured to date or will not be honoured
the future. That is, the undertakings to protect the Arbitration. As you know, the documents have
been kept under seal, outct for the President's request. The lawyers in the Arbitration have
not and will not see them. Not eveneen them.
6. Now, you have not heard any substantive argument against those three points. To repeat,
Timor-Leste has the documents it needs forbasidtuae adetangstonroct
the integritye~ anrtbundetarngartbinghoou;ed.
2Transcript p. 85, !ines 22-25 and p.fleth~Eligss'7 (Lowe)lf
3
Senator the Hon. George Brandis Q.C., Attorney-General, "Ministerial Statement: Execution of ASIO Search
Warrants" (4 Dec. 2013), p. 1. - 10-
~...,..
7. If Timor-Leste continues to maintain the proposition put by Sir Elihu on MondaYj "it
seems hardly likely that the materials have not been closely examined by Australian offi,that"
proposition is without foundation and should be dismissed.
8. Nor, to conclude this point, should the Court take up the hint this morning that in the face
of undertakings solemnly and consideredly given and binding on a State, you should nevertheless
make orders.
9. It is clear from the Court's jurisprudence that undertakings are of a binding character. I
5
reference theLegal Status of Eastern Green/and cas•1
10.(!he point was confirmed by the Court in the Nuclear Tests case (Australia v. Francel]
That is the first matter I wish to address.
The Evidence Available to Australia
11. Let me turn then to the important question of the Vice-President this morning, which
was: does Australia have evidence to support the proposition I put that Timor-Leste may be
encouraging the commission of a crime under Australian law or otherwise infringing national
7
security.If so, could we be more specific?
12. The answer to the first question is "yes".As to the second question, may I start by
noting that the proposition was carefully put at a levela reasonable apprehension and not at a
levelof assertion of fact. Australia does not wish to assert anything more than is strictly necessary
or appropriate to resolve this case. Within that framework, the answer I will now give as to the
4
CR 2014/1, para,l2 (Lauterpacht).
5
Legal Status of Eastern Green/and (Denmark v. Norway), Judgment, 1933, P.C.l.J., Sp.71: AIE, No. 53,
"The Court considers it beyond ali dispute that a reply of this nature by the Minster for Foreign Affairs on behalf of his
Government in response to a request diplomatie representative of a-foreign Power, in regard-to a question falling
within his province,indinguponthe country to which the Minister belongs;"
6Australia v. France, l.C.J. Reports 1974, p 267, para. 43: "It is weil recognized that declarations made by way
of unilateral acts, concerning legal or factual situations, may have the effect of creating obligations. Declarations of this
kind may be, and often are, very specifie. When it is the intention of the State making the declaration that it should
become bound according to its terms, that intention confersration the character of a legal undertaking, the
State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of
this kind, if given publicly, and with an intent to be bound, even though not made within the context of international
negotiations,binding." ,
iJ.u S c J:..l"-1\ \.~.r,.. \
~Doe 'Australia have evidence supporting the proposition that Timor-Leste is encouragingN.;) commission of
crimes under Australian law or otherwise jeopardizing Australia 'snational security, as suggest"\-.y Mr Gleeson in his
intervention21 January 2014 before the Court? Jfso, could Australia be more specifie on this pa' ""\.:c..llter?" - 11-
evidence will need to balance two matters. Firstly, matters of national security, which limit what 1
can say. Secondly, a desire not to further inflame relations between our countries.
C.e-c')
13. Let me then identizy-so there is sorne precision in my answethe~ V:l:tffi\
potentially.&slinquestion. One crime is under Section 39 ofthe Intelligence Services Act 2001 of
the Commonwealth. It is a crime if a present or former officer of ASIS communicates information
conceming the performancef the functions of ASIS acquired as an officer unless the approval of
the Director General is obtained. And I emphasize, that is the qualification permitted under the
Act. The second key provision is Section 41, which makes it a separate crime to make public the
identityf officers of ASIS, or information from which identity can be inferred, again without the
approvalof the Director General.
14. A third party would encourage the commission of crimeÎofthis character if it took steps
which sought to facilitate such communications or publications or sought to profit from them.
15. Tuming now to the evidence to support what I have put as a matter of apprehension, not
of fact, I will first identizy seven propositions of evidence and then I will identizy the materials
which underpin them. And you will note in what I say that the primary focusrehension
hinges upon conduct'! 19)4 r. Collaeas~ foeEast imor, as opposed to cond~ot à)riJ
the Timorese-Leste Govemment .
Cl
16. The first proposition is that Mr.as~generfr Timor-Leste, has received into his
possession a witness statement and an affidavit from a former officer who I will for
convenience label "X".
17. The second is that although the precise content of that document is not known to us, it is
il-s
apparent from what Mr. Collaery has said publicl~ thsubject-matter contains information
relevant ton alleged operation of ASIS in Dili in 2004, which would be information caught by
Section 39.
Q
18. The third, perhaps even more concerning, isthat Mr. Collaery, as tA!gentfor Timor-Leste,
-f..:,r\trV\1-
has chosen to republish that information, the information he says was obtthe~, from
widely in the media in Austrathereby accessible throughout the region and the world.
19. The fourth is that Timor-Leste proposes to tender and rely upon docwhichs-
would appear to be these sameclosures-as its evidence in the Arbitration. - 12-
20. The fifth is that Timor-Leste has argued vigorously that the Arbitration should not be
1Ir:;. Ïf\1-\..:\- ."-"'C:";:,u.lcl
subject to confidentiality so thattRilaimskÀm·llàbe made tfttrt8public.
21. The sixth and last point, which is of particular concern to Australia, is that there is an
apprehension that Timor-Leste, through Mr. Collaery, having obtained information from X, has
used that information as a basis- as a springboard, to use a term of equity from which to make
further enquiries, the result of which it now says publicly, has led it to identify four persans who it
says were involved in an operation against Timor-Leste in 2004. Itfurther has said publicly it now
Œ.)\-...)'j( accepts there is a risk to the safety of those persons>becausethey have been identifie idtJe~r
w.....,.:.,
names were revealed publicly. Those are the matters which underpin the concern that Australia,
through me, expressed yesterday.
22. Could I then go to the detail, and I apologize that the judges' folder supplement has only
just arrived, but we have been working during today on your question, Sir. What I will do is
summarize the key material the references in the judges' folder will be fully provided with the
material I have given to the President and there will be perhaps three of these documents I will
show you in particular. The detailed information,then, is this.
23.On 31 May 2013 in Timor-Leste's J~rIn ndeplendente it was reported that Mr. Pires,
T;"'~r-L"~
Timor-Leste's Minister ofResources, alleged that ASIS had broken into and buggedEast TiFHorssà
cabinet rooms during the negotiations of the CMATS Treaty. It was further reported that the
revelations were broughtto light by an ex-ASIS officer.
24. In that same article, Mr. Collaery- described as the lawyer at this stage for
-----~~) (_ Minister-Pire~was_reporteclas_confirming_thaLthe_e:vidence_ofAustralia'.s_alleged_conducLwas.
"irrefutable"9• He was quoted as saying "Australian authorities are weil aware that we are in a
position to back that up".
25. On 8 June 2013, in an article in the Economist, the same Minister Pires is quoted as
saying that Timor-Leste had "irrefutable proof' that during negotiations in 2004, Australia's secret
services had illegally obtained information and that hislawyer- we would infer Mr. Collaery for
Julio da Silva, "Xanana still Waiting for Response from Australia about CMATS", Jornal lndependente
(31 May2013), p. ~ttd- gsdsr'taa 44J.
9
Julio da Silva, "Xanana still Waiting for Response from Australia about CMATS", Jornal lndependente
(31 May2013), p. 61(j11dgesf'elder, t!lbHJ. - 13-
10
the reason previously cited- claimed the Timorese Prime Minister's offices were bugged .
Those matters relate to May and June oflast year. I briefly referred you to those matters yesterday.
26. Could 1 then supplement those with what occurred immediately after the intelligence
0
>< operation by ASIO in December{ Mr. Collaery made public statements in the press regarding the
evidence which was to be given by a person described as a former ASIS officer in thearbitration- x
and I want to be fairly precise in how I quote Mr. Collaery:
(a) On 3 December 2013, he said in an interview on the Lateline programme on the Australian
1\-:.ho.l\!>..'
Broadcasting Corporation (ABC) television, ~ v\ustraliftfl television network, that "this
witness was the director of ali technical operations with ASIS ... a very senior, experienced,
decorate/. He went on to say "the evidence is available here in The Hague as I
speak'~
(b) On the same day, he said in a further interview with the ABC that "the whistleblower's
evidence ... is here, it's abroad, it's ready•
(c) On 4 December 2013, in an interview again with the ABC, he gave further details of the
A-
evidence to be given by a former ASIS officer, described as the prime witness in thetirbitration"
proceedin !!\ Extracts from the affidavit of the former ASIS official were quoted, which
13
concerned instructions allegedly given to him by the head of ASI • Could I invite the Court
to go to tab 48, andif our earnest work this afternoon has been successful it will be the right tab
and, if not, I will apologize now. At tab 48, you will see the transcript and if you could go to
page 2, to the material we have taken the liberty of highlighting only for ease of reference, you
will see halfway down that Mr. Collaery- described here as lawyer for East Timor or
q
X therefore as ~gent- publicly disclosed an assertion: "The newly arrived director of ASIS
called the head of the technical area of ASIS to a meeting and, there, with his deputy, who 1
1"Timor-Leste and Australia: Bugs in the Pipeline", The Economist (8 June 2013), available at:
http://www.economist.com/news/asia/21579074-timorese-leaders-push-bette…
pipeline\(:jttEigssf's!E4~.,taè
1"Bernard Collaery, Lawyer for East Timor", Lateline, ABC (3 December2013), available at:
http://www.abc.net.au/lateline/content/2013/s3904428.htm'fjttEigefss'!E….
1Peter Lloyd, "ASIO raided office of lawyer representing East Timor in spying case", ABC News,
3 December 2013l(jwdgss'fs!Eiet,tab 47JE)
1Conor DuftY,"New detailsemerge in claims of spying on EastTimor", 7.30, ABC (4 Decembe~2013)
wl•h:r,tabg\· - 14-
cannot name, he was instructed to undertake a mission in East Timor to clandestinely record the
conversations [of] the then Timorese negotiatingy". If you drop down a little further, you
will see an interchange between. Collaery and Conor Du:fiY,the journalist, and if you drop
down a little further you see Mr. Collaery quoted as sayingwitness has [an] intelligence
medal [He] is a most decorated, senior official". Could 1then pause on the next paragraph,
which is of grave concern to Australia. Conor Du:fiY,the journa"7.30 has part of his
crucial affidavit, which says the then headIS instructed him to plant a Iistening deviee in
East Timor on the orders of the then ASIS head and now ASIO boss, David Ir1pause on
that. That woud appear to indicate that Mr. Collaery, on behalf of East Timor, having obtained
information from the ex-ASIS officer, in breach of Section 39, ,has then disclosed that
informationin the form of the affidavit, the very affidavit apparent!y they wish to assert State
property immunity over, to ajournalista major media network in Australia in order that that
material can be published widelyAustralia. I trust the Court will see, based on that material,
the apprehension which underlay the concern I expressed yesterday. And you will see, in the
dramatic manner that television producers like to do,turn to the top of the next page, that
it proceeded to a male voice-over reading from thedavit- in a dramatic form one might
imagine to convey with maximum publicity and exposure the material apparently
T.c-..~L<l.:.'nt.
communicated from X to Mr. Collaery on behalf of East Tit'H6tand then republished in
Australia. The Court may see the concern Australia holds and expresses as to whether this
conduct is wrongful, is unlawful and is damaging to our security.
(d)_Io~_complete_the_chron __Dleom b,r_o20_3,_in_Australian-AssociatecL--Press,
Mr. Collaery was cited as saying again the witness was "the director of ali technical operations
atASIS" 1•
(e)tAe:on\5 December, in the letter recording the removed mat1have already shown you, he
identified a witness statement, and affidavit, from an anonymized person.
27. There are two other aspectsf the chronology I wish to Tefer to, if the Court would
pleasego to tab 501now wish to underpin thp~oposi 1tpuotnat there is an apprehension that
14
"Raided East Timor Lawyer calls for Inquiry", Australian Associated Press, 4 December 20l31{itu:lgss' fslèsr,
~. - 15 -
~
the Timorese Government has used the information obtained through itstAlgent,Mr. Collaery, as a :x
springboard to ascertain the identities of Australian officers, potentially putting their lives at risk.
The Court will see from the highlighted material from the Sydney Morning Herald, in the third
paragraph, that Mr. Pires, East Timorese National Resources Minister, said: "We think we have
identified the team of people who came in to do the bugging. . . They are males, along with a
-;;,....r--L....k
possible lady spy'. He said Bast Titnortwould keep the names secure and then I pause on the next
sentence, but he noted that at least one of them was still working overseas and under the same
15
name, and maybe at risk "if the names get out over the internet' • And if you drop clownabout
five paragraphs in the highlighted material, you will see that the claims of spying come from a
former Australian secret intelligence service agent who turned whistleblower.
28. And if you would turn to the next tab, please,~ Mr. Pires is further quoted, in the
middle, saying this: ."Wethink we have identified things going into Timor at a particular date and
coming out, and that kind of relates to the stories we've been provided with"- apparently a
reference by Mr. Pires to the information he obtained through Mr. Collaery from X. I continue the
quote: "We've got names that we have been able to deduce. Those names are inside sorne of our
0
computers and in today's age, no-one with a computer is safe". I drop clowna little furtherJ.as4"If .><
those names wind up in the wrong bands, if those people may be still active in other parts of the
world ... they have to take extra precaution not to be identified, there are dangers involved. We
16
don't want anyone else to get burt in this thing."
29. Let me be clear so that there is no misapprehension. I do not assert that Minister Pires of
Timor-Leste bas a positive intention to publish the names of the ASIS officers that he bas, it would
appear, obtained through the actions of the Mr. Collaery and X. I do not positively assert that
Minister Pires has an intention to harm the lives of those persons. But I trust you will now see that
we have a situation where Australia is being asked to accept that the conscience of Mr. X, the
conscience of Mr. Collaery and the conscience of senior Timorese officiais is to be the guard of the
safety of Australian lives and Australian security information. I must say to you, Mr. President,
15
Tom Allard, "East Timor claims it knows which Australian spies bugged its offices", Sydney Morning Herald,
9 December 2013(j~:~ fQilersa'501.
1Rebecca Le May, "More whistleblowers in Timor spy scandai", Sydney Morning Herald (9 Dec. 2013) fJwEiges'
FeiEIBrt,a511. - 16-
Members of the Court, that is unacceptable. Minister Pires, Mr. CollaerJQshould noteer
be the guardsf the security of Australian lives and information.
..flr-.-..'1
30. The final matter in this, I apologizeklightly long answer to tbut I thought
it was important that we show you that the proposition was put with care and consideration -
ct!~a.r~\. ..,ri".J..J
that in the First Procedural Meetinghon 5 December, counsel for Timor-Leste acknowledged that
there would need to be arrangements protect the anonymity of the witness" and, it was said,
"[to] prevent the identification of any other intelligence agents". It was clear from that statement
(f"\-:;;c.ôKdJ
that the witness statement of affidavit has in fact disclosed names of other Australian intelligence
agents- that being information from which, apparently, Mr. Pires has proceeded to do his further
deductions.
!roM
31. Could move thtlon ~nswer to your first question, to a slightly shorter answer to
17
your second question- although not too shortYour question was a~d thank you for the x
questio ith~s caused us to go back and look at Section 25(a)the documents, data and
property - is it lawful to still retain them on the ground that returning them would currently be
prejudicial to Australia's security?
, 32. Our answer is "yes" for two reasons. The first is that, because of the Attorney-General's
direction,SIO to date has not inspected any of the documents. It has not commenced its task
because the documents are being kept under seal for all purposes until we have this Court's
decision on provisional measures.o, to date, no information has been obtained from the
documents. The second matter is thiwhich is looking forward. Why is it that ASIO needs to
-·
_____________ Jo_ok_aUh~s~_d_p_c_um~nts_in_ord~cto_pmJe_ LtutUhe_ans:racliw_m a___e__cud_fY-_
>< be slightly better revealedxfrom the chronology I have given you. The central enquiry for ASIO is
what is the nature and extent of the threat to security revealed by the documents? Do they reveal
that a former officer has disclosed and threatens further to disclose security information?
do, the questionsO would need to ask are these:
(a) HasiMI:X disclosed or does he threaten to disclose names or identities of serving or former
officers?
17
Judge Sepulvéda-Arn6r: "In accordance with the ASIO Act, Section 25(4C) .. Should the documents, data
and other property seized by the Australian authorities at the premisesy be still retained by the
Australian authorities on grounds that retuming themjudicial to Australia's national security?" - 17-
(b) If he does, will that endanger the lives or security of those persons, their families, persons they
have dealt with, particularlyey are posted outside Australia in dangerous places?
1"h;,.-J....,,""""'"':)
(c)~ X 'dts:osedfo:dMoes he threaten to disclose methods of operation of ASIO, such as
techniques, technical capabilities and trade craft, or indeed, has dealings of ASIO
with the intelligence agencies offriendly countries?
(d) How widespread are the actual or threatened disclosures by X? Are they solely to Timor-Leste
orto other States? Are they to individuals as weil as to foreign States?
33. It is not for Australia today te !:to assert or prove the precise nature of these
threats.e do not know what is in the documents. But I trust we have done enough to establish
before you that these threats exist and they are real. And itive in \'B:fiAustralia's
f\~-ro
interest tha~e allowed to do its job and inspect the documents and answer the questions I have
posed.
34. If ASIO finds there is no significant threat, that is the end the documents-
will be returned to Mr. Collaery.
35. If it finds a significant threat, it will provide advice on actions Australia can or should
take to mitigate the harm to Australia.
36. And that is why I said to you yesterday, itobject of this Request and a true vice in
it that>Timor-Leste invites you to make an order that will be almost final Assuming a
final hearing andjudgment, say12 to 18 months bence, ASIO would be sterilized for that period
of time, a period so long that if these dolWettlreveal threats, they wiIl probab!y already
have come to pass. And thats damage which the Court can never undo, by money or otherwise,
if- when it cornes to final judgmenyou accept that Timor-Leste's legal claims to absolute
property rights are erroneous.
37. Might I say this: almost everyonethis Court has at sorne time served a government
c:.o'ls\~\-'
and become privy to secrets, whether intelligence, securit)j f]abil:lelmaterial or otherwise. We ali
W~}t'l
know the rules. Secrecy is importa~t. the exceptional case where there is thought to be a
compelling higher interest which calls for disclosure, there will usually be a procedure available.
In Australia that procedure requires seeking the consent of the Director General of ASIO to make
the disclosure.What is not open for a State officer, serving or past, is to place his or her - 18-
conception of conscience or morality, or worse still private interest, above the law. Worse still
again is for that State officer to share those secrets with a foreign State, such that between them,
they determine the limits on disclosure. We ask you not to grant provisional measures because
~dol'\e.
they would that behaviour by the persons 1have so far identified.
Timing of the warrant
38. 1need to deal with certain further questions. Judge Bennouna's question concerning the
timing ofthe warrant18•
3~ .The search warrant was issued on 2 December 2013 and executed the next day because, by
then, Australia was in possession of information indicating it was likely (in the sense of a real risk)
that a person 1have referred to as X:
(a) had made disclosures of information concerning Australia's security Mr. Collaery on behalf
of Timor-Leste;
(b) would make further such disclosures, disclosures which Australia could not control or confine
in terms of subject-matter, purpose or recipients;
(c) might leave Australia within a matter of days with no certainty of return; and
(d) might destroy documents and data which might provide intelligence regarding such disclosures.
L.,)$. They were the concerns which made it essential for three immediate interrelated steps to
><'>< be taken: The first>cwasthat X's passport had to be cancelled; the second.,.wasthe warrant on X's
)( premises; the third)<'as the warrant on Mr. Collaery's premises. A view was taken that if those
~steps .werenotJakenimmerliately;=they maynot~ abee to hetaken latecas effectively;·_:And;Ldo.
··--·---·------------·-·-------·--·---
not need to remind the Court of other instances of which we are aware publicly of persons who
have fied their country with dangerous information they should not have taken with them for
exposure and when it is then too late to act.
lt11..MMJight I assure the Court,and this is my final ansWer to tliis question, thete was riO
connection between the timing of the matters, that 1 have just described, and the preliminary
~ .
hearing here in The Hague,\αlttheArbitral Tribunal 5December. Mr. X was not a witness in the
18
Judge Bennouna: "Can the Australian delegation explain to the Court why the Search Warrant was delivered on
2 December2013 and executed on 3 December, that is, two days before the first hearing of the Arbitral Tribunal, held on
5 December2013?" - 19-
Tribunal on that day. No witnesses were being called at ali, it was a preliminary hearing and, as far
as Australia knew, X did not have a plan to travel to The Hague at that time.
Ownership in the removed materials
L,'L.
fi. Judge Yusufs question on ownership of property. Thank you for that, we have looked
again closely, because we did not make our position sufficiently cl•aQuestions of ownership
cannot be answered in the absence of a proper examination of the documents in question.That
examination has not occurred because we have not inspected the documents. We therefore cannot
accept the proposition that the documents are necessarily the property of Timor-Leste, nor can we
~r~
putJ?ou a full submission on where ownership might lie.
~~ % There are however two matters we can put by reference to ownership. The first is this:
(a) to the extent the documents contain a witness statement or affidavit disclosing confidential
information belonging to Australia, the owner would be Australia and certainly not
Timor-Leste. Let me give you an example: if Mr. Edward Snowden fiees America containing
information in documents that he has stolen, and if he gives that information to a foreign State
or to a media outlet, that would not deprive the United States of ownership in those materials.
So one real possibility to be investigated, we would say in the Arbitral Tribunal or the
Australian courts, is whether to the extent the material contains the information of Australia,
the owner of the information is Australia, not Timor-Leste.
(b) The second proposition 1should mention is this: we have provided to the Court\iR taàs 52 aRè
~, material which would indicate that, up until perhaps November of last year, Mr. Collaery
was acting as the solicitorfor Mr. X Now, there is at least a real possibility that Timor-Leste
20
does not have ownership ofmaterial generated in the capacity acting as solicitor for•Mr. X
ii,.~"l'-\~
'-tt.A1.Could 1 mention one related matter about the Arbitratior@ There is sufficie you~ efore
now to know that it is likely that Timor-Leste wishes to tender evidence from the person 1 have
described as X in that Arbitration. For the information of the Court, but not for you to rule upon in
1Judge Yusuf: "In the view of the Parties, to whom did the individual items listed in the ASIO Property Seizure
Record of 3 December 2013and their contents belong at the time of their seizure?"
20
Letter from Bernard Gross to John Reid, dated 12 December 2013Jjwtae§:1; Richard Ackland,
"George Brandis' security clean-up leaves out messy questions", Sydney Morning Herald, 3 January 2014\judges' w18eo,
~· -20-
any way, it is appropriate to indicate that if Timor-Leste takes that course, and if the proposed
evidence were to disclose national security informationtralia, or be given in breach of
Australian criminallaw, Australia would intend to object to the admissibility of the evidence. We
informed the Tribunal on 5 December we would bring forward any application of that character
with expedition and we will do so.
Durationof the undertaking
k~ Q
)-4'.Judge Donoghue's question concerning the duration undertak tithe~~rsx x
question, it will not expire. Ali the words in question were intended to do was to allow for a
possible variation after the Court so ordered. There are no circumstances, other than those referred
toin subparagraph 2, which would require a variation. The purpose of subparagraph 2 was that if
circumstances arose where it became necessarfor reasons currently unanticipatfor the
Attorney-General to inform himselfhe material, Australia will first bring the matter to you, on
notice to Timor-Leste, and will not act before you have been able to consider the matter.
Relationship between paragraphs(3) and (4) of the undertaking
t..6 22
fi The answer to your second question is"no".
~Th purpose of subparagraph 4 was only to clarify that matters concerning the Timor Sea
o~~:.c.. t
and related negotiations, as weil as the ~onductCourt proceedings andl\the Tribunal, fall
outside the "national security" purpose referred to in subparagraph 3. 1trutha~q-~'-''="'s
............:::~:::::::::::::::::=:::::::=::::::::::::::::=·=Pastand•=rutu-re:nisclosure··ot:t6e::remove<Fmaferîals-•·······-····
----·--------'-'lib. ··--·----· ·--~..}-
% In relation to Judge Greenwood's questioncan we undertakeA_thedisclosure of
information derived from the documents seized or notes taken during the execution of the search
21
Judge Donoghue, Question A: "My first question relates to the chapeau that begins the paragraph on page 2. 1
seek to clarify the significance of the first 'or' on tine 1 of page 2. Under what circumstances would the undertaking of
the Attorney-General expire prior to this Court's Judgment?" ·
2Judge Donoghue, Question B: "My second question also relates to the paragraph on page 2. I seek to clarify
the relationship between subparagraph (3) and subparagraph (4)ct that subparagraph (4) begins with the
phrase 'without limiting the above'.lia wishes, for national security purposes, to provide the material or
information derived from the material to a partlian Govemment that has responsibility for the matters
described subparagraph (4), could it do so consistent with the Undertaking." - 21 -
3
warranf has not occurred to persans involved in the arbitration or commercial negotiations? Yes,
1give that undertaking.
)-IrAsto your second questio:Either the documents will be returned once the identified
- '" -
x period expires~whi vent the ASIO Act does not govern their special prosecua t.ion~ot(D
perhaps in the circumstances more relevant to the q~tstidhcueents remain in the bandx
of ASIO or the prosecutors, Australia's approach would be to make the appropriate application to
the Court under thetional Security Information (Criminal and Civil Proceedings) Act 2004 (the
NSI Act)l(see tfl:b30 oftl:ie Anne*es to Australia's Written Observations-}which can be applied to
ensure that the information does not come to the notices referred to in the question.
'ScT ~he Attorney-General undertakes to you that in the event of such a prosecution, he will
direct the Commonwealth Director Public Prosecutions to invoke the relevant provisions of that
Act. And, in the unlikely event that a prosecution took place before the resolutionr,
the Attorney-General, through me, undertakes that he will inform the Courtdertaking 1
have just given you, he will seek the appropriate orders to limit the dissemination of the
information. And in the unlikely event the orders were not made, the Attorney-General will bring
the matter back to this Court before any further action is taken in Australia.
S" %. Mr. President, ·that coneludes my presentation. 1thank you for your attention, Members
of the Court.
$"2if[.1invite you to call upon Mr. Campbell.
The PRESIDENT: Thank you, very much, Mr. Solicitor-General. Now 1 give the floor to
Mr. Campbell. Please, take the floor.
Mr. CAMPBELL: Mr. President, Members of the Court, in the second round, 1 will be
addressing the plausibilityhe rights asserted by Timor-Leste over the past few days and, in
2Judge Greenwood, Question A: "Does Australia undertake that no information derived from the documents
seized or from notes made course of the execution of the search warrant has already been communicated to any
persan involvedthe arbitration proceedings or any persan who might be involved in negotiations relating to the matters
referred toparagraph 4 ofthat undertaking?"
2Judge Greenwood, Question B: "In the event of a prosecution in Australia, will any of the documents seized or
information derived from those documents be disclosedch a way that those documents or that information
will be likelyome to the notice of persans involved in the arbitration, in the proceedings in this Court or in any
negotiationsthe kind to which 1have referred?" -22-
particular, the submissions made by Sir Michael Wood tI will also respond to the
third question\possdto ~.t:ts~m taiayou posed this morning to Australia,
Vice-President Sepulveda-Amor. I will seek to do that.
1. Before doing so, I will just address a few matters in less detail. The first is to respond to
what counsel for the Applicant had to say on the other conditions for the indication of provisional
measures.In relation to the need for a sufficient link, it is our submission that nothing said by
Timor-Leste this morning detracts from the submissions made by Mr. Burmester on that issue in
the first round. In relation to irreparable prejudice and urgency, similarly, Timor-Leste does not
point to any material which overcomes the arguments made by Australia in the first round. In
particular, in the face of the undertakings provided by the Attorney-General, Timor-Leste cannot
point to any irreparable harm. And, hence, no urgency can be shown.
2. In relation to urgency, Timor-Leste suggested that any remedies in an Australian court
f'o may not be effective and did so by reference to Administrative Decisions (Judicial
Review)ct • However, this is not the only basis upon which to challenge decisions such as that
taken under theO Act. The relevant legal bases and the courts in which actions might be taken
include Section(v) of the Australian Constitution and th~ASIOh Coofficers and
i~
the Attorney-General are subject to that provision and, ifjurisdictioniÏ'.Happlicable,that court.
3. Iwill~ now address a couple of miscellaneous matters that were touched on by
Sir Michael this morning. The first is that there was certainly no disrespect intended, as suggested
26
by Sir Michael this mor,in Australia's comments that it would not be raising matters of
""""""""""-"---------""--------------------------------------------------"""""--------------------------------------
-=---~=====}tlr anS<ar aiîlol.issŒH1fX~at-iis leaficü-ii-at.81iü1alslrm:eCI1----e-s-
stated, we had thought that this statement might be helpful to the Court. If what Sir Michael is
suggesting is that Australia should have indicated that it accepted there is prima facie jurisdiction
and admissibility that is an entirely different matter, particularly given that we have reserved the
right to raise questions of jurisdiction and admissibility at the merits stage.
4. Secondly,r Michael pointed to a difference between the exceptions to legal professional
privilege as it applies in domestic Lawand the exceptions to legal professional privilege as they
25
CR 2014p.21par40 (Wood).
2CR 2014p.14par8 (Wood).
@ CR..'l..JI.}241(><W·"(Cc:~<tlA). -23-
apply under internationalla• In this respect, I would simply refer the Court again to the Report
. ~~~~
by independent expert James Spigelman, in the St.it1ffïl5case, made in the context of
international law, that privilege "does not extend to communications which undermine the integrity
of, or otherwise constitute an abuse of, the administration o• justice"
5. Mr. President, Members of the Court, moving to the matter of the plausibility of rights
relied upon by Timor-Leste, Sir Michael Wood this morning stated that Australia had not addressed
most of the points Timor-Leste made on this matterI thought we had- soI apologize at the
start, if sorne of what I have to say seems familiar. Sir Michael also accused Australia of using the
well-known tactic of overstating a proposition in order to knock it clown. I believe this was in
relation to my statement that Timor-Leste claims, without any basis, that State property and papers
enjoy "absolute immunity"• Sir Michael took umbrage at the reference to the term "absolute". I
apologize ifi implied that counsel for Timor-Leste used that term, when they did not.
6. But I want to move to the real overstatement, and not a merely semantic one, and I also
wish to explain why I used the word "absolute".The real overstatement- and this time an
overstatement of law- was made by Sir Michael on Monday when he referred to, without
qualification, a general principle, that is, the rights of Timor-Leste: "as a sovereign State, including
inviolability of its documents and their entitlement to immunity from measures of cons•raint"
This overstatement, I would say, was compounded by Sir Elihu's application of the principle to the
context of this case: "The Timorese rights are, moreover, entitled to recognition no matter what
special provisions may be asserted by Australian law against them."
7. This is indeed in the nah1reof an absolute right asserted by Timor-Leste. While treaties
and customary international law set out particular immunities applying in particular circumstances,
they do not support an immunity of the breadth put forward by Timor-Leste, either expressly or by
combining ali the treaties together to underpin a general principle, as Timor-Leste now admits that
2CR 2014/3, p. 13, para. 5 (Wood). 1
.J-....:;~c..' 1 \M\.-.c;)- l:'Aac ~l~vdelr:l...~r\\-vl.lc.g-.d
/f=R 2014/2, p. 28, para. 29 (Ca~c....,. ';' ..I-la,.:.erJ--".-:>.:Go"c.r"'""<&\C::C>J\aclo..
29 1
CR 2014/3, p. 15, para. 1 (Wood)l~'Dee.e..cr l::.J~;. c:kd o.l-
°CR 2014/3, p. 18, para. 27 (Wood).
3CR 201411, p. 36, para. 17 (Wood).
3CR 2014/1, p. 28, para. 25 (Lauterpacht). -24-
it is doing. This morning, Sir Michael, after referring to a "network of treaties and customary
international law", stated: "The similarities, both in content and rationale, between the different
types of immunity have helped develop and form the broader principles that have emerged into a
general customary law ofState inviolability and immunity." 33
8. 1looked in vain for a footnote reference to support this mega-immunity and there was no
footnote. We ourselves can find no authority to support it and certainly no judicial authority. It is
indeed an overstatement, and this time, as 1said earlier, one of law.
9. lt is important not to assume that an immunity that expressly applies in one particular
context applies more generally orto another context- and this is what Timor-Leste has done. For
example, Sir Michael stated this morning: "Timor-Leste relies on the principles reflected in ali
immunities: that substantive law, which normally applies, cannot be enforced against aState, be it
in relation toits diplomats, its special missions or its property." 34
1O.Yes, there are specifie immunities applying to diplomats and special missions- but this
does not mean they can be applied by sleight ofhand simply by adding the words "or its property".
11. Just to clari:tythe position in relation to treaties as weil, 1would Iike to make clear once
again that there is no immunity or inviolability under existing convention to which both Australia
and Timor-Leste are party that affords immunity to the documents and other material removed
from 5 Brockman Street, Narrabundah.
12. Sir Michael suggested this morning that 1 was "highly selective" in responding to
Timor-Leste's submissions, and asks where is Australia's response to a number of examples of
..............................35 .........................................................................
........................................................................
................................
... illegedimmunity to which it refers . The fact is, that none of the examples to which Timor-Leste.·-~-----
refers, such as the Spanish/UK exchange in 2013 (tab 17 of Timor-Leste's judges' folders) or
6
particular passages such as in Professer Denza's texe clearly affirm the proposition that
Timor-Leste seeks and needs to establish, namely, that the records held in an agent's office enjoy
absolute immunity from local criminal or related coercive processes. In particular, the Spanish/UK
33CR 2014/3, p.18, para.28.(Wood).
34CR 2014/3, p.15, para.13 (Wood).
35
CR 2014/3, p.18 para.28 (Wood).
36
CR 2014/3, p.19, para.29 (Wood). -25-
incident concerning bags in transit clearly marked as official relates to a situation expressly
contemplated by the Viennaention- namely, communications between a State and its
diplomatie representativesther country. The incident did not involve documents located in
premises of a commercial agenSimilarly, Denza at page 226 is referring to "official
correspondence of the missshe is not referring to documents held in the premises of a
7
commercialgene·
13. This morning, Sir Elihu also accused Australia of ignoring the municipal law authorities
deployed by Timor-Lestesupport of the proposition that a broad and general "principle" of
38
immunity or inviolability applies to ali State property as a matter of •ustomary internationallaw
However, those cases, we would submit, do not provide any assistancc:;.,this Court.
~ ~
14. They include the cases of Rahimtoola v. Nizam of Hyderabac!J. the SS "Cristina'Kand
@
Juan Ysmael & Co !ne v. Indonesian Governmenx_ They ali concerned judicial proceedings and
they were alithe 1950s.
15. The passages from those cases relied upon by Timor-Leste reinforce the generaliy and
weli-understood rulesrisdictional immunities relating to proceedings before a court. They do
not address the circumstances case.
16. Nor does the decision of this Court in Germany v. Italy, which also concerned
jurisdictional immunity and providest for a general right of immunity and inviolability of
8>
document~
17. Sir Michael this morning also sought to assert the application of the principles of
jurisdictional immunity to the circumstances of this case. There are two points to be made here:
!-1-'r
the fii~t hoght to do so by saying that there are prospective criminal prosecutions in this case,
and therefore they could amount to a proceeding for the purposesnvention and
customary internationalWeil, it is quite clear that the 2004 Convention does not apply to
criminal proceedings. The ILC Commentary makes this clear:
3E. Denza, Diplomatie Law, 3rd p.226.n, OUP, 2008,
3CR 2014p9 (Lauterpacht).
~ [-1<\S3J3=\'1.
~ [1\""llB:~z~.:
~ [Mst.;:WLRS;!A.
~ ~"'",.; r,~,..":.:=--.8och(_."'""'1/-:ï:..J":.in~":....j~.'à,).;.<.•~~l--.., -26-
[.,.) ......"'
'~ drat articles do not define the t39m 'proceeding', it should be understood that
they do not cover criminal proceedings."
I will not repeat what I had to say the other day, other than to say it is quite, clear both under
"c.o...r+',
international law and Australian domestic law, that the Attorney-General is not aA~- he
certainly does not look like one anyway.
18. I now turn to the question asked by you, Vice-President Sepulveda-Amor. You asked-
this was your third question-you asked Australia the following question:
"Does Australia consider that, under customary international law, State
documents are entitled to international protection in the form of immunity and
inviolability outside the frameworkf diplomatie and consular relations? If so, what
is the extent of international 0rotection that Australia claims for its own State
documents in foreign territory?"
19. Australia would answer that question as follows: the principal immunities applying to
State documents outside the framework of diplomatie and consular relations are those set out in the
treaties and conventions in force and the customary international law reflective of those
conventions. An example of a relevant convention is the New York Convention on Special
41
Missions •
20. While Australia does not accept, as asserted by Timor-Leste, that there is a "general
@>
customary law of inviolability and immunity,k there are more closely defined immunities under
customary international law, suchs thejurisdictional immunities of States from the courts of other
States, which I mentioned earlier.
21. As to the second partf your question, Mr. Vice-President, the degree of protection that
their location.It suffices to say that if Australian Government documents were located in the
territoryof another country in exactly the same circumstances as in this case, they would not be
inviolable or immune. That concludes the answer to the question.
Mr. President, let me coll.clude;by-wof a summary:
39
Draft Article 2 Paragraph 1 (a), Yearbook of International Law Commission, 1991, Vol. II, Part Two, 14.
4°CR 2014/3, p. 25.
41
1400 UNTS 231.
(§)CR, foAlt~~ >•.A"1 p..ra.~ ( W.:old). -27-
There is no general customary international law principle concerning the immunity and
inviolability of State property and documents. Such a principle is implausible.
Secondly, there is no jurisdictional immunity applying to the documents removed from
5 Brockman Street, Narrabundah. There is no proceeding. There is no court. As the immunity
does not apply, the question of its plausibility is not even reached.
Thirdly, Timor-Leste has not identified any other form of immunity or inviolability that would
apply to those documents under either customary or conventional international law.
22. Mr. President, Members of the Court, thank you for your attention. I now ask you to cali
upon the Agent to conclude Australia's observations.
The PRESIDENT: Thank you very much, Mr. Campbell. I give the floor to the Agent,
Mr. John Reid. You have the floor, Sir.
Mr. REID:
CONCLUDING REMARKS
Introduction
1. Mr. President, Members of the Court, given the hour I will be mercifully brief. But
before I conclude Australia's submissions, there are two brief points which demand
response from me, on behalf of the Government of Australia.
2. First, Sir Michael this morning remarked that it would be helpful if I, as Agent, could
confirm for the Court that the undertakings provided by the Attorney-General bind Australia as a
matter of international law. Allow me to repeat what I said yesterday for the benefit of our friends.
3. And I quote, from paragraph 6 ofyesterday's transcript:
"[T]he Attorney-General of the Commonwealth of Australia has the actual and
ostensible authority to bind Australia as a matter of both Australian law and
international law."
4. I need say no more. Again, as I said yesterday, Australia has made the undertakings.
Australia will honour them.
5. Second, my friend His Excellency Ambassador da Fonseca this morning sought to litigate
before you the maritime boundary between our two nations. -28-
6. That matter is simply not in issThe treaties which govem the maritime
arrangementsn the Timor Sea ought be respThey remain in force and Australia is
committed to their faithful implementation.
7. Australia does regret the description of the maritime delimitation outlined by
His Excellency this moming.s a description which we would oppose in the most strenuous
terms.
8. Mr. President, Members of the Court, you have now heard Australia's submissions.
Briefly, they can be summarized thus:
9. First, there are no plausible rights sought to be protected by Timor-Leste in this case. Our
friends are effectively asking this Court to accept a notion of extra-territorial reach of absolute
immunity so broad as to render obsolete the Vienna Convention on Diplomatie Relations, the
Vienna Convention on Consular Relations, and customary international law on State immunity.
10. Second, there is no urgency. For ifthere were, Timor-Leste would surely have availed
itself other more appropriate forums at sorne point in these last seven weeks.
11. Third, there can be no irreparable harm. To the extent that any legitimate right resides in
Timor-Leste-a point which we refute in the stronthe comprehensive and solemn
undertakings provided by the Attorney-Generalia to this Court must surely satisfy you
that those rights are sufficiently protected pending finaljudgment in these proceedings.
12. Mr. President, Members of the Court, 1 would respectfully echo the comments of my
friend His Excellency Ambassador da Fonseca this moming. Australia and Timor-Leste do have a
--~--·~-==·aos~re -l·-a:sensaliiipnsühi-(Jl~_tI.!l_nrr~~P~~t-_andffie~asfjiïJ_:=._My:goveriïmenf···
remains strongly committed to the continued growth ofthat friendship.
13. 1 would at this point, Mr. President, conclude by thanking my delegation and
distinguished counseJ fortheir tirelessfofthe Govemmentof Australia.
14. 1would thank also the Registrar and his staff, the interpreters and, of course, thank you,
Mr.President, Members of the Court, for the attention you have paid to Australia's oral pleadings
over the coursehese hearings. -29-
Final Submissions
15. It now falls tome to read the Final Submissions of Australia.
16. In accordance with Article 60 of the Rules and having regard to the Request for
Provisional Measures filed by the Government of the Democratie Republic of Timor-Leste, and its
oral pleadings,
"1. Australia requests the Court to refuse the Request for the indication of provisional
measures submitted by the Democratie Republic of Timor-Leste.
2. Australia further requests the Court stay the proceedings until the Arbitral Tribunal
has rendered itsjudgment in the Arbitration under the Timor Sea Treaty."
17. A signed copy ofthese Submissions has beentransmitted to the Court.
18. Mr. President, Members ofthe Court, thank you.
The PRESIDENT: Thank you, Sir. The Court takes note of the Final Submissions of the
Government of the Commonwealth of Australia which you have just read as its Agent. This brings
the present series of sittings to an end. It remains for me to thank the representatives of the two
Parties for the assistance they have given to the Court by their oral observations in the course of
these four hearings. In accordance with practice, 1would ask the Agents to remain at the Court's
disposai. The Court will render its Order on the Request for the indication of provisional measures
as soon as possible. The date on which this Order will be delivered at a public sitting will be duly
communicated to the Agents of the Parties. Since the Court bas no other business before it today,
the sittingis closed.
The Court rose at 6.05 p.m. .....
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Public sitting held on Wednesday 22 January 2014, at 5 p.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)