                          INTERNATIONAL COURT OF JUSTICE

                            REPORTS OF JUDGMENTS,
                         ADVISORY OPINIONS AND ORDERS

                   QUESTIONS RELATING TO THE SEIZURE
                            AND DETENTION
                    OF CERTAIN DOCUMENTS AND DATA
                           (TIMOR‑LESTE v. AUSTRALIA)

                          REQUEST FOR THE INDICATION
                           OF PROVISIONAL MEASURES

                             ORDER OF 3 MARCH 2014

                                 2014
                          COUR INTERNATIONALE DE JUSTICE

                              RECUEIL DES ARRÊTS,
                       AVIS CONSULTATIFS ET ORDONNANCES

                    QUESTIONS CONCERNANT LA SAISIE
                            ET LA DÉTENTION
                   DE CERTAINS DOCUMENTS ET DONNÉES
                           (TIMOR‑LESTE c. AUSTRALIE)

                            DEMANDE EN INDICATION
                          DE MESURES CONSERVATOIRES

                          ORDONNANCE DU 3 MARS 2014

8 CIJ1061.indb 1                                           25/03/15 08:46

                                                   Official citation :
                   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, p. 147

                                              Mode officiel de citation :
                    Questions concernant la saisie et la détention de certains documents et données
                   (Timor‑Leste c. Australie), mesures conservatoires, ordonnance du 3 mars 2014,
                                             C.I.J. Recueil 2014, p. 147

                                                                                1061
                                                                   Sales number
                   ISSN 0074-4441                                  No de vente:
                   ISBN 978-92-1-071177-7

8 CIJ1061.indb 2                                                                                25/03/15 08:46

                                                       3 MARCH 2014

                                                          ORDER

                   QUESTIONS RELATING TO THE SEIZURE
                            AND DETENTION
                    OF CERTAIN DOCUMENTS AND DATA
                       (TIMOR‑LESTE v. AUSTRALIA)

                          REQUEST FOR THE INDICATION
                           OF PROVISIONAL MEASURES

                    QUESTIONS CONCERNANT LA SAISIE
                            ET LA DÉTENTION
                   DE CERTAINS DOCUMENTS ET DONNÉES
                       (TIMOR‑LESTE c. AUSTRALIE)

                           DEMANDE EN INDICATION
                          DE MESURES CONSERVATOIRES

                                                       3 MARS 2014

                                                       ORDONNANCE

8 CIJ1061.indb 3                                                      25/03/15 08:46

                     147

                                     INTERNATIONAL COURT OF JUSTICE

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

                          QUESTIONS RELATING TO THE SEIZURE
                                   AND DETENTION
                           OF CERTAIN DOCUMENTS AND DATA
                                         (TIMOR‑LESTE v. AUSTRALIA)

                                       REQUEST FOR THE INDICATION
                                        OF PROVISIONAL MEASURES

                                                        ORDER

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

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

                     4

8 CIJ1061.indb 136                                                                                25/03/15 08:46

                     148 	            seizure and detention (order 3 III 14)

                     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”).

                         2. 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 ;

                              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‑
                           tic law ;

                              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 ;

                              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.”

                        3. 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.
                        4. 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.

                     5

8 CIJ1061.indb 138                                                                                25/03/15 08:46

                     149 	             seizure and detention (order 3 III 14)

                         5. 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”.
                        6. 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

                           (iv) not to intercept or cause or request the interception of communi‑
                                cations between Timor‑Leste (including its Agent H.E. Joaquim

                     6

8 CIJ1061.indb 140                                                                                25/03/15 08:46

                     150 	            seizure and detention (order 3 III 14)

                              da Fonseca) and its legal advisers in relation to this action (DLA
                              Piper, Sir E. Lauterpacht QC and Vaughan Lowe QC)”.

                         7. 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.

                        8. 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.
                        9. 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”.
                        10. A copy of the above‑mentioned letter was also transmitted, for
                     information, to the Government of Timor‑Leste.
                        11. 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.
                        12. 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.
                        13. 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 :
                     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.

                     7

8 CIJ1061.indb 142                                                                                25/03/15 08:46

                     151 	           seizure and detention (order 3 III 14)

                       14. 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.

                       15. 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).

                        16. 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.”
                        17. 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.

                                                            *
                                                        *       *

                                            I. Prima Facie Jurisdiction

                        18. 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).

                       19. 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).

                       20. In the course of the oral pleadings, Australia stated that, while
                     reserving its “right to raise questions of jurisdiction and admissibility at

                     8

8 CIJ1061.indb 144                                                                                25/03/15 08:46

                     152 	            seizure and detention (order 3 III 14)

                     the merits stage”, it would not be “raising those matters in relation to
                     Timor‑Leste’s request for provisional measures”.

                        21. 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.

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

                        22. 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).

                        23. 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).

                                                         *  *
                        24. 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.

                       25. 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‑

                     9

8 CIJ1061.indb 146                                                                                25/03/15 08:46

                     153 	           seizure and detention (order 3 III 14)

                     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.

                        26. 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.
                        27. 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.
                        28. 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.

                                                          *
                        29. The Court now turns to the issue of the link between the rights
                     claimed and the provisional measures requested.
                        30. The provisional measures requested by Timor‑Leste are aimed at
                     preventing further access by Australia to this seized material, at providing

                     10

8 CIJ1061.indb 148                                                                                25/03/15 08:46

                     154 	            seizure and detention (order 3 III 14)

                     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.

                                III. Risk of Irreparable Prejudice and Urgency

                        31. 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).
                        32. 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.

                                                         *  *
                        33. 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”.

                     11

8 CIJ1061.indb 150                                                                                25/03/15 08:46

                     155 	            seizure and detention (order 3 III 14)

                        34. 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.

                                                           *
                       35. 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.

                         36. 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

                     12

8 CIJ1061.indb 152                                                                                25/03/15 08:46

                     156 	            seizure and detention (order 3 III 14)

                     first bring that fact to the attention of the Tribunal and offer further
                     undertakings.

                       37. 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”.
                        38. 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 :

                          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].”

                     13

8 CIJ1061.indb 154                                                                                25/03/15 08:46

                     157 	            seizure and detention (order 3 III 14)

                        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”.
                        39. 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”.

                                                            *
                        40. 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.
                        41. 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”.

                                                          *  *
                        42. 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

                     14

8 CIJ1061.indb 156                                                                                25/03/15 08:46

                     158 	            seizure and detention (order 3 III 14)

                     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.
                        43. 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.
                        44. 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.
                        45. 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”.
                        46. 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).

                     15

8 CIJ1061.indb 158                                                                                25/03/15 08:46

                     159 	            seizure and detention (order 3 III 14)

                        47. 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.

                        48. 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.

                                           IV. Measures to Be Adopted

                         49. 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.
                         50. 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.

                     16

8 CIJ1061.indb 160                                                                                25/03/15 08:46

                     160 	            seizure and detention (order 3 III 14)

                        51. 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.

                       52. 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.

                                                             *
                                                         *       *
                       53. 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.

                                                             *
                                                         *       *
                       54. 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.

                                                             *
                                                         *       *

                       55. For these reasons,
                       The Court,
                       Indicates the following provisional measures :

                     17

8 CIJ1061.indb 162                                                                                25/03/15 08:46

                     161 	           seizure and detention (order 3 III 14)

                       (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 ;

                       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 ;

                       (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 ;

                       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 ;

                       (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 ;

                       against : Judge ad hoc Callinan.

                       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.

                                                                    (Signed) Peter Tomka,
                                                                              President.
                                                                (Signed) Philippe Couvreur,
                                                                              Registrar.

                     18

8 CIJ1061.indb 164                                                                                25/03/15 08:46

                     162 	          seizure and detention (order 3 III 14)

                       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.

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

                     19

8 CIJ1061.indb 166                                                                              25/03/15 08:46