court: icj

doctype: beslut

caseName: Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia)

decisionType: order

procedure: Request for the indication of provisional measures

publisher: International Court of Justice

title: Order of 3 March 2014

text: INTERNATIONAL COURT OF JUSTICE

type: rubrik

text: YEAR 2014 2014 3 March General List No. 156 3 March 2014

type: stycke

text: QUESTIONS RELATING TO THE SEIZURE AND DETENTION OF CERTAIN DOCUMENTS AND DATA

text: (TIMOR‑LESTE v. AUSTRALIA)

text: REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES

text: ORDER

text: Present : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue, Gaja, Bhandari ; Judges ad hoc Callinan, Cot ; Registrar Couvreur.

text: The International Court of Justice, Composed as above, After deliberation, Having regard to Articles 41 and 48 of the Statute of the Court and Articles 73, 74 and 75 of the Rules of Court, Makes the following Order : Whereas :

text: By an Application filed with the Registry of the Court on 17 December 2013, the Democratic Republic of Timor‑Leste (hereinafter “Timor‑

text: Leste”) instituted proceedings against Australia with respect to a dispute concerning the seizure on 3 December 2013, and subsequent detention, by “agents of Australia of documents, data and other property which belongs to Timor‑Leste and/or which Timor‑Leste has the right to protect under international law”. In particular, Timor‑Leste claims that these items were taken from the business premises of a legal adviser to Timor‑Leste in Narrabundah, in the Australian Capital Territory, alleg‑ edly pursuant to a warrant issued under section 25 of the Australian Secu‑ rity Intelligence Organisation Act 1979. The seized material, according to Timor‑Leste, includes, inter alia, documents, data and correspondence between Timor‑Leste and its legal advisers relating to a pending Arbitra‑ tion under the Timor Sea Treaty of 20 May 2002 between Timor‑Leste and Australia (hereinafter the “Timor Sea Treaty Arbitration”).

text: At the end of its Application, Timor‑Leste “requests the Court to adjudge and declare : First : [t]hat the seizure by Australia of the documents and data violated (i) the sovereignty of Timor‑Leste and (ii) its property and other rights under international law and any relevant domestic law ;

text: Second : [t]hat continuing detention by Australia of the documents and data violates (i) the sovereignty of Timor‑Leste and (ii) its prop‑ erty and other rights under international law and any relevant domes‑ tie law ;

text: Third : [t]hat Australia must immediately return to the nominated representative of Timor‑Leste any and all of the aforesaid documents and data, and destroy beyond recovery every copy of such documents and data that is in Australia’s possession or control, and ensure the destruction of every such copy that Australia has directly or indirectly passed to a third person or third State ;

text: Fourth : [t]hat Australia should afford satisfaction to Timor‑Leste in respect of the above‑mentioned violations of its rights under inter‑ national law and any relevant domestic law, in the form of a formal apology as well as the costs incurred by Timor‑Leste in preparing and presenting the present Application.”

text: In its aforementioned Application, Timor‑Leste bases the jurisdic‑ tion of the Court on the declaration it made on 21 September 2012 under Article 36, paragraph 2, of the Statute, and on the declaration Australia made on 22 March 2002 under the same provision.

text: On 17 December 2013, Timor‑Leste also submitted a request for the indication of provisional measures, pursuant to Article 41 of the Statute of the Court and Articles 73 to 75 of the Rules of Court.

text: At the end of its request, Timor‑Leste asks the Court to “indicate the following provisional measures : (a) [t]hat all of the documents and data seized by Australia from 5 Brockman Street, Narrabundah, in the Australian Capital Ter‑ ritory 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 all 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 held 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 all copies that it has made of any of the seized documents and data ; (d) [t]hat Australia (i) destroy beyond recovery any and all copies of the documents and data seized by Australia on 3 December 2013, and use every effort to secure the destruction beyond recovery of all copies that it has transmitted to any third party, and (ii) inform Timor‑Leste and the International Court of Justice of all steps taken in pursuance of that 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 outside Aus‑ tralia or Timor‑Leste”.

text: Timor‑Leste further requested that, pending the hearing and deci‑ sion of the Court on the request for the indication of provisional mea‑ sures, the President of the Court exercise his power under Article 74, paragraph 4, of the Rules of Court, to call upon Australia : “(i) immediately to deliver to Timor‑Leste and to the International Court of Justice a list of each and every document and file con‑ taining electronic data that it seized from 5 Brockman Street, Narrabundah, in the Australian Capital Territory, on 3 Decem‑ ber 2013 ; (ii) immediately to seal the documents and data (and any and all copies thereof) ; (iii) immediately to deliver the sealed documents and data (and any and all copies thereof) either to the Court or to 5 Brockman Street, Narrabundah, in the Australian Capital Territory ; and

text: (iv) not to intercept or cause or request the interception of communi‑ cations between Timor‑Leste (including its Agent H.E. Joaquim da Fonseca) and its legal advisers in relation to this action (DLA Piper, Sir E. Lauterpacht QC and Vaughan Lowe QC)”.

text: The Registrar communicated forthwith an original copy of the Application and of the request to the Government of Australia. The Reg‑ istrar also notified the Secretary‑General of the United Nations of the filing of these documents by Timor‑Leste.

text: Pending the notification provided for by Article 40, paragraph 3, of the Statute and Article 42 of the Rules of Court, by transmission of the printed bilingual text of the Application to the Members of the United Nations, the Registrar informed those States of the filing of the Applica‑ tion and its subject, and of the filing of the request for the indication of provisional measures.

text: By a letter dated 18 December 2013, the President of the Court, act‑ ing under Article 74, paragraph 4, of the Rules of Court, called 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 Democratic Republic of Timor‑Leste in the present proceedings”.

text: A copy of the above‑mentioned letter was also transmitted, for information, to the Government of Timor‑Leste.

text: By a letter dated 18 December 2013, the Registrar informed the Parties that, in accordance with Article 74, paragraph 3, of the Rules of Court, 20, 21 and 22 January 2014 had been fixed as the dates of the oral proceedings on the request for the indication of provisional measures.

text: Since the Court included upon the Bench no judge of the nationality of either of the Parties, each Party proceeded to exercise the right conferred upon it by Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case ; Timor‑Leste chose Mr. Jean‑Pierre Cot and Australia chose Mr. Ian Callinan.

text: At the public hearings held on 20, 21 and 22 January 2014, oral observations on the request for the indication of provisional measures were presented by :

text: On behalf of Timor‑Leste : H.E. Mr. Joaquim A. M. L. da Fonseca, Sir Elihu Lauterpacht, Sir Michael Wood. On behalf of Australia : Mr. John Reid, Mr. Justin Gleeson, Mr. Bill Campbell, Mr. Henry Burmester, Mr. James Crawford.

text: During the hearings, questions were put by some Members of the Court to the Parties, to which replies were given orally. Timor‑Leste availed itself of the possibility given by the Court to comment in writing on Australia’s reply to one of these questions.

text: At the end of its second round of oral observations, Timor‑Leste asked the Court to indicate provisional measures in the same terms as included in its request (see paragraph 5 above).

text: At the end of its second round of oral observations, Australia stated the following : “1. Australia requests the Court to refuse the request for the indica‑ tion of provisional measures submitted by the Democratic Repub‑ lic of Timor‑Leste. 2. Australia further requests the Court stay the proceedings until the Arbitral Tribunal has rendered its judgment in the Arbitration under the Timor Sea Treaty.”

text: By an Order dated 28 January 2014, the Court decided not to accede to Australia’s request for a stay of the proceedings, considering, inter alia, that the dispute before it between Timor‑Leste and Australia is sufficiently distinct from the dispute being adjudicated upon by the Arbi‑ tral Tribunal in the Timor Sea Treaty Arbitration. The Court therefore, after having taken into account the views of the Parties, proceeded to fix time‑limits for the filing of the written pleadings.

text: I. Prima Facie Jurisdiction

text: The Court may indicate provisional measures only if the provisions relied on by the Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but the Court need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case (see, for example, Certain Activities Carried Out by Nicaragua in the Bor‑ der Area (Costa Rica v. Nicaragua), Provisional Measures, Order of 8 March 2011, I.C.J. Reports 2011 (I), pp. 17‑18, para. 49).

text: Timor‑Leste seeks to found the jurisdiction of the Court in this case on the declaration it made on 21 September 2012 under Article 36, paragraph 2, of the Statute, and on the declaration Australia made on 22 March 2002 under the same provision (see paragraph 3 above).

text: In the course of the oral pleadings, Australia stated that, while reserving its “right to raise questions of jurisdiction and admissibility at the merits stage”, it would not be “raising those matters in relation to Timor‑Leste’s request for provisional measures”.

text: The Court considers that the declarations made by both Parties under Article 36, paragraph 2, of the Statute appear, prima facie, to afford a basis on which it might have jurisdiction to rule on the merits of the case. The Court thus finds that it may entertain the request for the indication of provisional measures submitted to it by Timor‑Leste.

text: II. The Rights whose Protection Is Sought and the Measures Requested

text: The power of the Court to indicate provisional measures under Article 41 of the Statute has as its object the preservation of the respective rights claimed by the parties in a case, pending its decision on the merits thereof. It follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by it to belong to either party. Therefore, the Court may exercise this power only if it is satisfied that the rights asserted by the requesting party are at least plau‑ sible (see, for example, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order of 8 March 2011, I.C.J. Reports 2011 (I), p. 18, para. 53).

text: Moreover, a link must exist between the rights which form the sub‑ ject of the proceedings before the Court on the merits of the case and the provisional measures being sought (ibid., para. 54).

text: Timor‑Leste states that the rights which it seeks to protect are the ownership and property rights which it holds over the seized material, entailing the rights to inviolability and immunity of this property (in par‑ ticular, documents and data), to which it is entitled as a sovereign State, and its right to the confidentiality of communications with its legal advis‑ ers. Timor‑Leste moreover holds that confidentiality of communications between legal counsel and client is covered by legal professional privilege, which it states is a general principle of law.

text: Australia, for its part, contends that, “[e]ven assuming that the material removed from 5 Brockman Street, Narrabundah does belong to Timor‑Leste — a matter which is yet to be established”, there is no gen‑ eral principle of immunity or inviolability of State papers and property, and therefore the rights asserted by Timor‑Leste are not plausible. It also contends that, if there is a principle in international law whereby any State is entitled to the confidentiality of all communications with its legal advisers, that principle (akin to legal professional privilege) is not abso‑ lute and does not apply when the communication in question concerns the commission of a crime or fraud, constitutes a threat to national secu‑ rity or to the higher public interests of a State, or undermines the proper administration of justice.

text: At this stage of the proceedings, the Court is not called upon to determine definitively whether the rights which Timor‑Leste wishes to see protected exist ; it need only decide whether the rights claimed by Timor‑Leste on the merits, and for which it is seeking protection, are plausible.

text: The Court begins by observing that it is not disputed between the Parties that at least part of the documents and data seized by Australia relate to the Timor Sea Treaty Arbitration or to possible future negotia‑ tions on maritime delimitation between the Parties, and that they concern communications of Timor‑Leste with its legal advisers. The principal claim of Timor‑Leste is that a violation has occurred of its right to communicate with its counsel and lawyers in a confidential manner with regard to issues forming the subject‑matter of pending arbitral proceedings and future negotiations between the Parties. The Court notes that this claimed right might be derived from the principle of the sovereign equality of States, which is one of the fundamental principles of the international legal order and is reflected in Article 2, paragraph 1, of the Charter of the United Nations. More specifically, equality of the parties must be preserved when they are involved, pursuant to Article 2, paragraph 3, of the Charter, in the process of settling an international dispute by peaceful means. If a State is engaged in the peaceful settlement of a dispute with another State through arbitration or negotiations, it would expect to undertake these arbitration proceedings or negotiations without interference by the other party in the preparation and conduct of its case. It would follow that in such a situation, a State has a plausible right to the protection of its com‑ munications with counsel relating to an arbitration or to negotiations, in particular, to the protection of the correspondence between them, as well as to the protection of confidentiality of any documents and data prepared by counsel to advise that State in such a context.

text: Accordingly, the Court considers that at least some of the rights for which Timor‑Leste seeks protection — namely, the right to conduct arbitration proceedings or negotiations without interference by Australia, including the right of confidentiality of and non‑interference in its com‑ munications with its legal advisers — are plausible.

text: The Court now turns to the issue of the link between the rights claimed and the provisional measures requested.

text: The provisional measures requested by Timor‑Leste are aimed at preventing further access by Australia to this seized material, at providing the former with information as to the scope of access of Australia to the documents and data seized, and at ensuring the non‑interference of Aus‑ tralia in future communications between Timor‑Leste and its legal advis‑ ers (see paragraph 5 above). The Court considers that these measures by their nature are intended to protect Timor‑Leste’s claimed rights to con‑ duct, without interference by Australia, arbitral proceedings and future negotiations, and to communicate freely with its legal advisers, counsel and lawyers to that end. The Court thus concludes that a link exists between Timor‑Leste’s claimed rights and the provisional measures sought.

text: III. Risk of Irreparable Prejudice and Urgency

text: The Court, pursuant to Article 41 of its Statute, has the power to indicate provisional measures when irreparable prejudice could be caused to rights which are the subject of the judicial proceedings before it (see, for example, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order of 8 March 2011, I.C.J. Reports 2011 (I), p. 21, para. 63).

text: The power of the Court to indicate provisional measures will be exer‑ cised only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights in dispute before the Court gives its final decision (ibid., para. 64). The Court must therefore consider whether such a risk exists at this stage of the proceedings.

text: Timor‑Leste claims that Australia’s actions in seizing confidential and sensitive material from its legal adviser’s office create a real risk of irreparable prejudice to its rights. Timor‑Leste asserts that it is highly probable that most of the documents and data in question relate to its legal strategy, both in the context of the Timor Sea Treaty Arbitration and in the context of future maritime negotiations with Australia. Accord‑ ing to Timor‑Leste, these “matters are crucial to the future of Timor‑Leste as a State and to the well‑being of its people”. It states that the confiden‑ tial material includes advice of counsel, legal assessments of Timor‑Leste’s position and instructions given to counsel and to geological and maritime experts. Timor‑Leste adds that it may already have been seriously harmed given that Australia has admitted that some of the hard‑copy materials were briefly inspected during the search. In view of the sensitive nature of the seized material, Timor‑Leste contends that, by its conduct, “Australia has placed itself in a position of considerable advantage, both in the pending Arbitration and in a whole range of matters involved in relations between Timor‑Leste and Australia”.

text: Timor‑Leste affirms that the risk of irreparable prejudice is immi‑ nent because it is currently considering which strategic and legal position to adopt in order to best defend its national interests vis‑à‑vis Australia in relation to the 2002 Timor Sea Treaty and the 2006 Treaty on Certain Maritime Arrangements in the Timor Sea. Given that the preparations for the Timor Sea Treaty Arbitration are well underway, with oral pro‑ ceedings due to begin at the end of September 2014, Timor‑Leste states that time is of the essence if irreparable damage is to be avoided. Timor‑Leste contends that, if the protection of its rights is deferred until the close of the proceedings on the merits in the current case, the preju‑ dice it would suffer would be increased.

text: According to Australia, there is no risk of irreparable prejudice to Timor‑Leste’s rights. It states that the comprehensive undertakings pro‑ vided by the Attorney‑General of Australia demonstrate that any rights which Timor‑Leste may be found to possess are sufficiently protected pending final judgment in the current case. In this regard, Australia refers to various instructions and undertakings given by its Attorney‑General on 4, 19 and 23 December 2013 and, in particular, to a further written undertaking of the Attorney‑General given on 21 January 2014.

text: Australia explains that on 4 December 2013 the Attorney‑General of Australia made a Ministerial Statement to Parliament on the execution by Australia’s security intelligence organization (“ASIO”) of the search warrants on the business premises of a legal adviser to Timor‑Leste in Canberra. In his statement, the Attorney‑General indicated that the search warrants had been issued by him “at the request of ASIO, on the grounds that the documents and electronic data in question contained intelligence relating to national security matters”. He emphasized “that the material taken into possession in execution of the warrants [was] not under any circumstances to be communicated to those conducting the [arbitration] proceedings on behalf of Australia”. Australia further notes that, following the first procedural meeting of the Timor Sea Treaty Arbi‑ tral Tribunal convened on 5 December 2013, the Attorney‑General of Australia provided a written undertaking to the Tribunal, dated 19 December 2013. In that undertaking, the Attorney‑General recalled the instructions given to ASIO, and declared that the material seized would not be used by any part of the Australian Government for any purpose related to the Timor Sea Treaty Arbitration. Further, the Attorney‑General undertook that he would not make himself aware or otherwise seek to inform himself of the content of the material or any information derived from the material and that, should he become aware of any circumstance in which he would need to inform himself, he would first bring that fact to the attention of the Tribunal and offer further undertakings.

text: Australia informed the Court that, following the letter of the Pres‑ ident under Article 74, paragraph 4, of the Rules of the Court (see para‑ graph 9 above), the Attorney‑General of Australia wrote a letter dated 23 December 2013 to the Director‑General of Security of ASIO, directing that the measures set out in the undertaking to the Arbitral Tribunal on 19 December 2013 be implemented equally in relation to the proceedings instituted before the Court. In his letter, the Attorney‑General stated, in particular, that “it would be desirable and appropriate for Australia to satisfy the President’s request by ensuring that, from now until the conclusion of the hearing on 20‑22 January, the material is sealed, that it is not accessed by any other officer of ASIO, and that ASIO ensure that it is not accessed by any other person”.

text: At the start of Australia’s first round of oral argument on the request for the indication of provisional measures, the Attorney‑General provided the Court with a written undertaking dated 21 January 2014. Australia points out that this written undertaking contains comprehen‑ sive assurances that the confidentiality of the seized documents will be safeguarded. It points, in particular, to the following declarations made by the Attorney‑General in his written undertaking : “that until final judgment in this proceeding or until further or earlier order of the Court :

text: 1. I will not make myself aware or otherwise seek to inform myself of the content of the Material or any information derived from the Material ; and 2. Should I become aware of any circumstance which would make it necessary for me to inform myself of the Material, I will first bring that fact to the attention of the Court, at which time further undertakings will be offered ; and 3. The Material will not be used by any part of the Australian Gov‑ ernment for any purpose other than national security purposes (which include potential law enforcement referrals and prosecu‑ tions) ; and 4. Without limiting the above, the Material, or any information derived from the Material, will not be made available to any part of the Australian Government for any purpose relating to the exploitation of resources in the Timor Sea or related negotiations, or relating to the conduct of : (a) these proceedings ; and (b) the proceedings in the Arbitral Tribunal [constituted under the 2002 Timor Sea Treaty].”

text: In its oral pleadings, Australia affirmed that the Attorney‑General’s written undertaking, dated 21 January 2014, would protect Timor‑Leste’s rights “pending final judgment in these proceedings”.

text: Moreover, during the oral proceedings, with reference to the letter dated 23 December 2013 from the Attorney‑General of Australia to the Director‑General of Security of ASIO (see paragraph 37 above), the Solicitor‑General of Australia stated that “ASIO to date has not inspected any of the documents”. He noted that ASIO “[had] not commenced its task because the documents [were] being kept under seal for all purposes until [Australia had] this Court’s decision on provisional measures”, add‑ ing that, “to date, no information [had] been obtained from the docu‑ ments”.

text: With respect to the undertakings given by the Attorney‑General of Australia on 4, 19 and 23 December 2013, Timor‑Leste argues that they are “far from adequate” to protect Timor‑Leste’s rights and interests in the present case. According to Timor‑Leste, in the first place, they lack binding force, at least at the international level ; secondly, they are in seri‑ ous respects more limited than the provisional measures requested by Timor‑Leste, as they do not address the wider issues going beyond the Timor Sea Treaty Arbitration ; and thirdly, the instructions set out in the letter dated 23 December 2013 from the Attorney‑General of Australia to the Director‑General of ASIO are given only until the conclusion of the hearings in the present phase of the case.

text: With reference to the written undertaking dated 21 January 2014, Timor‑Leste asserts that it does not suffice to prevent the risk of irrepa‑ rable harm, nor does it remove the urgency of Timor‑Leste’s request for the indication of provisional measures. While Timor‑Leste acknowledges that this written undertaking goes further than the previous assurances in that it extends “to maritime delimitation matters”, it contends that the written undertaking “should be backed up by an order of the Court that deals with the treatment of the materials”.

text: The Court is of the view that the right of Timor‑Leste to conduct arbitral proceedings and negotiations without interference could suffer irreparable harm if Australia failed to immediately safeguard the confi‑ dentiality of the material seized by its agents on 3 December 2013 from the office of a legal adviser to the Government of Timor‑Leste. In par‑ ticular, the Court considers that there could be a very serious detrimental effect on Timor‑Leste’s position in the Timor Sea Treaty Arbitration and in future maritime negotiations with Australia should the seized material be divulged to any person or persons involved or likely to be involved in that arbitration or in negotiations on behalf of Australia. Any breach of confidentiality may not be capable of remedy or reparation as it might not be possible to revert to the status quo ante following disclosure of the confidential information.

text: The Court notes that the written undertaking given by the Attorney‑ General of Australia on 21 January 2014 includes commitments to the effect that the seized material will not be made available to any part of the Australian Government for any purpose in connection with the exploitation of resources in the Timor Sea or related negotiations, or in connection with the conduct of the current case before the Court or of the proceedings of the Timor Sea Treaty Tribunal. The Court observes that the Solicitor‑General of Australia moreover clarified during the hearings, in answer to a question from a Member of the Court, that no person involved in the arbitration or nego‑ tiation has been informed of the content of the documents and data seized.

text: The Court further notes that the Agent of Australia stated that “the Attorney‑General of the Commonwealth of Australia [had] the actual and ostensible authority to bind Australia as a matter of both Australian law and international law”. The Court has no reason to believe that the writ‑ ten undertaking dated 21 January 2014 will not be implemented by Aus‑ tralia. Once a State has made such a commitment concerning its conduct, its good faith in complying with that commitment is to be presumed.

text: The Court, however, takes cognizance of the fact that, in para‑ graph 3 of his written undertaking dated 21 January 2014, the Attorney‑ General states that the seized material will not be used “by any part of the Australian Government for any purpose other than national secu‑ rity purposes (which include potential law enforcement referrals and prosecutions)”. The Attorney‑General underlined in paragraph 2, that “[s]hould [he] become aware of any circumstance which would make it necessary for [him] to inform [himself] of the Material, [he] would first bring that fact to the attention of the Court, at which time further under‑ takings will be offered”.

text: Given that, in certain circumstances involving national security, the Government of Australia envisages the possibility of making use of the seized material, the Court finds that there remains a risk of disclosure of this potentially highly prejudicial information. The Court notes that the Attorney‑General of Australia has given an undertaking that any access to the material, for considerations of national security, would be highly restricted and that the contents of the material would not be divulged to any persons involved in the conduct of the Timor Sea Treaty Arbitration, in the conduct of any future bilateral negotiations on mari‑ time delimitation, or in the conduct of the proceedings before this Court. However, once disclosed to any designated officials in the circumstances provided for in the written undertaking dated 21 January 2014, the infor‑ mation contained in the seized material could reach third parties, and the confidentiality of the materials could be breached. Moreover, the Court observes that the commitment of Australia to keep the seized material sealed has only been given until the Court’s decision on the request for the indication of provisional measures (see paragraph 39 above).

text: In light of the above, the Court considers that the written under‑ taking dated 21 January 2014 makes a significant contribution towards mitigating the imminent risk of irreparable prejudice created by the sei‑ zure of the above‑mentioned material to Timor‑Leste’s rights, particu‑ larly its right to the confidentiality of that material being duly safeguarded, but does not remove this risk entirely.

text: The Court concludes from the foregoing that, in view of the cir‑ cumstances, the conditions required by its Statute for it to indicate provi‑ sional measures have been met in so far as, in spite of the written undertaking dated 21 January 2014, there is still an imminent risk of irreparable prejudice as demonstrated in paragraphs 46 and 47 above. It is therefore appropriate for the Court to indicate certain measures in order to protect Timor‑Leste’s rights pending the Court’s decision on the merits of the case.

text: IV. Measures to Be Adopted

text: The Court recalls that it has the power, under its Statute, when a request for provisional measures has been made, to indicate measures that are in whole or in part other than those requested. Article 75, para‑ graph 2, of the Rules of Court specifically refers to this power of the Court. The Court has already exercised this power on several occasions in the past (see, for example, Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambo‑ dia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, I.C.J. Reports 2011 (II), p. 551, para. 58). In the present case, having considered the terms of the provisional measures requested by Timor‑Leste, the Court finds that the measures to be indicated need not be identical to those requested.

text: The Court notes that the Solicitor‑General of Australia clarified during the oral proceedings that the written undertaking of the Attorney‑ General of 21 January 2014 “will not expire” without prior consultation with the Court. Thus, this undertaking will not expire once the Court has ruled on Timor‑Leste’s request for the indication of provisional measures. As the written undertaking of 21 January 2014 does not contain any specific reference to the seized documents being sealed, the Court must also take into account the duration of Australia’s commitment to keep the said material under seal contained in the letter dated 23 Decem‑ ber 2013 from the Attorney‑General of Australia to the Director‑General of ASIO. The Court takes note of the fact that under the terms of that letter, the commitment was given until the close of the oral proceedings on the request for the indication of provisional measures. The Court fur‑ ther observes that, during the oral proceedings, Australia gave assurances that the seized material would remain sealed and kept inaccessible until the Court had rendered its decision on that request.

text: Given the likelihood that much of the seized material contains sen‑ sitive and confidential information relevant to the pending arbitration and that it may also include elements that are pertinent to any future maritime negotiations which may take place between the Parties, the Court finds that it is essential to ensure that the content of the seized material is not in any way or at any time divulged to any person or per‑ sons who could use it, or cause it to be used, to the disadvantage of Timor‑Leste in its relations with Australia over the Timor Sea. It is there‑ fore necessary to keep the seized documents and electronic data and any copies thereof under seal until further decision of the Court.

text: Timor‑Leste has expressed concerns over the confidentiality of its ongoing communications with its legal advisers concerning, in particular, the conduct of the Timor Sea Treaty Arbitration, as well as the conduct of any future negotiations over the Timor Sea and its resources, a matter which is not covered by the written undertaking of the Attorney‑General of 21 January 2014. The Court further finds it appropriate to require Australia not to interfere in any way in communications between Timor‑Leste and its legal advisers, either in connection with the pending arbitral proceedings and with any future bilateral negotiations concerning maritime delimitation, or in connection with any other related procedure between the two States, including the present case before the Court.

text: The Court reaffirms that its “orders on provisional measures under Article 41 [of the Statute] have binding effect” (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109) and thus create international legal obligations for any party to whom the provisional measures are addressed.

text: The decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application, or relating to the merits themselves. It leaves unaffected the right of the Governments of Timor‑Leste and Australia to submit arguments in respect of those questions.

text: For these reasons,

text: The Court, Indicates the following provisional measures :

text: (1) By twelve votes to four, Australia shall ensure that the content of the seized material is not in any way or at any time used by any person or persons to the disadvantage of Timor‑Leste until the present case has been concluded ;

text: in favour : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges Owada, Abraham, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Xue, Gaja, Bhandari ; Judge ad hoc Cot ; against : Judges Keith, Greenwood, Donoghue ; Judge ad hoc Callinan ;

text: (2) By twelve votes to four, Australia shall keep under seal the seized documents and electronic data and any copies thereof until further decision of the Court ;

text: (3) By fifteen votes to one, Australia shall not interfere in any way in communications between Timor‑Leste and its legal advisers in connection with the pending Arbitra‑ tion under the Timor Sea Treaty of 20 May 2002 between Timor‑Leste and Australia, with any future bilateral negotiations concerning maritime delimitation, or with any other related procedure between the two States, including the present case before the Court. in favour : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue, Gaja, Bhandari ; Judge ad hoc Cot ;

text: against : Judge ad hoc Callinan.

text: Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this third day of March, two thousand and fourteen, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Democratic Republic of Timor‑Leste and the Government of Australia, respectively.

text: (Signed) Peter Tomka, President.

text: (Signed) Philippe Couvreur, Registrar.

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

text: (Initialled) P.T. (Initialled) Ph.C.

title: Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia)


procedure: Request for the modification of the Order indicating provisional measures of 3 March 2014

title: Order of 22 April 2015

text: INTERNATIONAL COURT OF JUSTICE

text: YEAR 2015 2015 22 April General List 22 April 2015 No. 156

text: QUESTIONS RELATING TO THE SEIZURE AND DETENTION OF CERTAIN DOCUMENTS AND DATA

text: (TIMOR‑LESTE v. AUSTRALIA)

text: REQUEST FOR THE MODIFICATION OF THE ORDER INDICATING PROVISIONAL MEASURES OF 3 MARCH 2014

text: ORDER

text: Present : President Abraham ; Vice‑President Yusuf ; Judges Owada, Tomka, Bennouna, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Gevorgian ; Judges ad hoc Callinan, Cot ; Registrar Couvreur.

text: The International Court of Justice, Composed as above, After deliberation, Having regard to Article 41 of the Statute of the Court and Article 76 of the Rules of Court, Makes the following Order : Whereas :

text: By an Application filed in the Registry of the Court on 17 December 2013, the Democratic Republic of Timor‑Leste (hereinafter “Timor‑ Leste”) instituted proceedings against Australia with respect to a dispute concerning the seizure on 3 December 2013, and subsequent detention, by

text: “agents of Australia of documents, data and other property which belongs to Timor‑Leste and/or which Timor‑Leste has the right to protect under international law”. In its Application, Timor‑Leste claims, in par‑ ticular, that these items were taken from the business premises of a legal adviser to Timor‑Leste (Collaery Lawyers) in Narrabundah, in the Australian Capital Territory, allegedly pursuant to a warrant issued under section 25 of the Australian Security Intelligence Organisation Act 1979. It states that the seized material includes, inter alia, documents, data and correspondence between Timor‑Leste and its legal advisers relating to an Arbitration under the Timor Sea Treaty of 20 May 2002 between Timor‑Leste and Australia.

text: On 17 December 2013, Timor‑Leste, referring to Article 41 of the Statute of the Court and Articles 73 to 75 of the Rules of Court, also submitted a request for the indication of provisional measures.

text: After hearing the Parties, the Court, by an Order of 3 March 2014, indicated the following provisional measures : “(1) Australia shall ensure that the content of the seized material is not in any way or at any time used by any person or persons to the disadvantage of Timor‑Leste until the present case has been concluded ; . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (2) Australia shall keep under seal the seized documents and elec‑ tronic data and any copies thereof until further decision of the Court ; . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) Australia shall not interfere in any way in communications between Timor‑Leste and its legal advisers in connection with the pending Arbitration under the Timor Sea Treaty of 20 May 2002 between Timor‑Leste and Australia, with any future bilateral negotiations concerning maritime delimitation, or with any other related procedure between the two States, including the present

text: case before the Court.” (Questions relating to the Seizure and Detention of Certain Documents and Data (Timor‑Leste

text: I.C.J. Reports 2014, p. 161, para. 55.)

text: By an Order of 28 January 2014, the Court fixed 28 April 2014 and 28 July 2014 as the respective time‑limits for the filing in the case of a Memorial by Timor‑Leste and a Counter‑Memorial by Australia. The Memorial and Counter‑Memorial were filed within the time‑limits thus fixed.

text: By letters dated 17 June 2014, the Parties were informed that the oral proceedings would open on 17 September 2014.

text: By a joint letter dated 1 September 2014, the Agents of Timor‑Leste and Australia requested the Court “to adjourn the hearing set to com‑ mence on 17 September 2014, in order to enable the Parties to seek an amicable settlement”. The Agents also raised the possibility that the Par‑ ties might jointly seek a variation of the Order indicating provisional measures of 3 March 2014. By letters dated 3 September 2014, the Regis‑ trar informed the Parties that the Court had decided, pursuant to Arti‑ cle 54 of the Rules of Court, to grant their joint request to postpone the oral proceedings.

text: By a letter dated 25 March 2015, Australia indicated that it “wishe[d] to return the materials removed from the premises of Collaery Lawyers on 3 December 2013, which are the subject of the present proceedings” and are listed in the Schedule to the above letter. Australia accordingly requested modification of the Order of 3 March 2014, pursuant to Arti‑ cle 76 of the Rules of Court. The Registrar communicated a copy of that request forthwith to the Government of Timor‑Leste.

text: By letters dated 25 March 2015, the Registrar informed the Parties that the time‑limit within which Timor‑Leste could submit written obser‑ vations on Australia’s request had been fixed as 10 April 2015. Timor‑Leste filed such observations on 27 March 2015.

text: The request for modification of the Order of 3 March 2014, pre‑ sented by Australia, concerns the second provisional measure indicated therein, namely that “Australia shall keep under seal the seized docu‑ ments and electronic data and any copies thereof until further decision of the Court”. Australia requests the Court “to exercise its power under Article 76 (1) of the Rules to authorize the removal of the materials from their current location, where they have been kept under seal, and to allow their return still sealed to Collaery Lawyers”.

text: In its written observations, Timor‑Leste takes note of Australia’s request and states that it “would have no objection to an appropriate modification of the second provisional measure for this purpose”.

text: Article 76, paragraph 1, of the Rules of Court reads as follows : “At the request of a party the Court may, at any time before the final judgment in the case, revoke or modify any decision concerning provisional measures if, in its opinion, some change in the situation justifies such revocation or modification.”

text: In order to rule on Australia’s request, the Court must therefore first ascertain whether, in light of the facts now brought before it by that

text: State, there has been a change in the situation which called for the indica‑ tion of certain provisional measures in March 2014. If so, it must then consider whether such a change justifies the modification or revocation of the measures previously indicated.

text: The Court will begin by determining whether there has been a change in the situation calling for the measures indicated in its Order of 3 March 2014.

text: The Court recalls that the above‑mentioned measures were required because of Australia’s refusal to return the documents and data seized and detained by its agents. It observes that, in its letter of 25 March 2015, Australia has now notified the Court of its intention to return the docu‑ ments and data in question. The Court further notes that, in its written observations, Timor‑Leste raises no objections to this course of action or to the corresponding provisional measures being modified accordingly. In view of Australia’s change in position regarding the return of the docu‑ ments and data, the Court is of the opinion that there has been a change in the situation that gave rise to the measures indicated in its Order of 3 March 2014.

text: The Court must now consider the consequences to be drawn from that change in situation in respect of the measures which were indicated in the Order of 3 March 2014.

text: In that Order, the Court found that “the right of Timor‑Leste to conduct arbitral proceedings and nego‑ tiations without interference could suffer irreparable harm if Australia failed to immediately safeguard the confidentiality of the material seized by its agents on 3 December 2013 from the office of a legal adviser to the Government of Timor‑Leste”.

text: In particular, it considered that “there could be a very serious detrimental effect on Timor‑Leste’s position in the Timor Sea Treaty Arbitration and in future maritime negotiations with Australia should the seized material be divulged to any person or persons involved or likely to be involved in that arbi‑ tration or in negotiations on behalf of Australia”. The Court took note of the written undertaking by the Attorney‑General of Australia dated 21 January 2014, whereby he declared that no part of the Australian Government would have access to the material seized, but the Court also observed that the Australian Government envisaged the possibility of making use of that material in certain circumstances involv‑ ing national security. The Court thus concluded that there remained an imminent risk of irreparable harm (Questions relating to the Seizure and Detention of Certain Documents and Data (Timor‑Leste v. Australia), Provisional Measures, Order of 3 March 2014, I.C.J. Reports 2014, pp. 157‑159, paras. 42‑48).

text: The Court notes that the return of the documents and data seized, and any copies thereof, would be in accordance with part of the third submission of Timor‑Leste presented in its Application (ibid., p. 148, para. 2) and in its Memorial. However, it observes that such return could only be effected on the basis of a “further decision” (point 2 of the opera‑ tive part of its Order of 3 March 2014 (see paragraph 3 above)), whereby the Court would authorize the transfer of that material and specify the modalities for that transfer.

text: In view of the foregoing, and in reaching its decision on Australia’s request, the Court takes the view that the change in situation is such as to justify a modification of the Order of 3 March 2014. Taking account of the Parties’ agreement regarding the return of the seized documents and data, which, by necessary implication, includes any copies thereof, the Court considers that it should now authorize such return, while maintain‑ ing the obligation for Australia to keep under seal that material until its transfer has been completed under the supervision of a representative appointed for that purpose by Timor‑Leste. The Court must be duly informed that the return has been effected and at what date that return took place.

text: The modification resulting from the present Order is without effect on the measures indicated in points 1 and 3 of the operative part of the Order of 3 March 2014 (see paragraph 3 above), which will continue to have effect until the conclusion of the present proceedings, or until further decision of the Court.

text: The decision rendered in the present proceedings in no way pre‑ judges any question relating to the merits of the case. It leaves unaffected the right of the Governments of Timor‑Leste and Australia to submit arguments in respect of those questions.

text: For these reasons,

text: The Court, (1) Unanimously,

text: Authorizes the return, still sealed, to Collaery Lawyers of all the docu‑ ments and data seized on 3 December 2013 by Australia, and any copies thereof, under the supervision of a representative of Timor‑Leste appointed for that purpose ; (2) Unanimously, Requests the Parties to inform it that the return of the documents and data seized on 3 December 2013 by Australia, and any copies thereof, has been effected and at what date that return took place ; (3) Unanimously, Decides that, upon the return of the documents and data seized on 3 December 2013 by Australia, and any copies thereof, the second mea‑ sure indicated by the Court in its Order of 3 March 2014 shall cease to have effect.

text: Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this twenty‑second day of April, two thou‑ sand and fifteen, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Democratic Republic of Timor‑Leste and the Government of Austra‑ lia, respectively.

text: (Signed) Ronny Abraham, President.

text: (Signed) Philippe Couvreur, Registrar.

text: Judge Cançado Trindade appends a separate opinion to the Order of the Court ; Judge ad hoc Callinan appends a declaration to the Order of the Court.

text: (Initialled) R.A. (Initialled) Ph.C.

type: avgorande