18 FISHERIES JURISDICTION (ORDER 17 VIII 72)

(f) the United Kingdom Government should furnish the Govern-
ment of Iceland and the Registry of the Court with all relevant
information, orders issued and arrangements made concerning
the control and regulation of fish catches in the area.

(2) Unless the Court has meanwhile delivered its final judgment in the
case, it shall, at an appropriate time before 15 August 1973, review
the matter at the request of either Party in order to decide whether
the foregoing measures shall continue or need to be modified or
revoked.

Done in English and in French, the English text being authoritative,
at the Peace Palace, The Hague, this seventeenth day of August,
one thousand nine hundred and seventy-two, in four copies, one of
which will be placed in the archives of the Court, and the others trans-
mitted respectively to the Government of the Republic of Iceland,
to the Government of the United Kingdom of Great Britain and Northern
Ireland, and to the Secretary-General of the United Nations for trans-
mission to the Security Council.

(Signed) ZAFRULLA KHAN,
President.

(Signed) S. AQUARONE,
Registrar.

Vice-President AMMOUN and Judges FORSTER and JIMENEZ DE ARECHAGA
make the following joint declaration:

We have voted for this Order taking into account that the serious
problems of the contemporary law of the sea which arise in this case
are part of the merits, are not in issue at the present stage of the pro-
ceedings and have not in any way been touched upon by the Order.
When indicating interim measures the Court must only take into account
whether, if action is taken by one of the Parties pending the judicial
proceedings, there is likelihood of irremediable damage to the rights
which have been claimed before it and upon which it would have to
adjudicate. It follows therefore that a vote for this Order cannot have
the slightest implication as to the validity or otherwise of the rights
protected by such Order or of the rights claimed by a coastal State
dependent on the fish stock of its continental shelf or of a fishery zone.
Those substantive questions have not been prejudged at all since the Court

10
19 FISHERIES JURISDICTION (ORDER 17 VILL 72)

will, if it declares itself competent, examine them, after affording the
Parties the opportunity of arguing their cases.

Judge PADILLA NERVO appends a dissenting opinion to the Order of the
Court.

(Initialled) Z. K.
(Initialled) S. A.

Il


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

DEMANDE D’INTERPRETATION
DE L’ARRET DU 20 NOVEMBRE 1950

EN L’AFFAIRE DU DROIT D’ASILE
(COLOMBIE /PEROU)

ARRET DU 27 NOVEMBRE 1950

1950

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

REQUEST FOR
INTERPRETATION OF THE JUDGMENT
OF NOVEMBER 2oth, 1950, IN THE
ASYLUM CASE
(COLOMBIA / PERU)

JUDGMENT OF NOVEMBER 27th, 1950
Le présent arrêt doit être cité comme suit :

« Demande d'interprétation de VArvét du 20 novembre 1950
en l'affaire du droit d'asile,
Arrêt du 27 novembre 1950: C.I.J. Recueil 1950, p. 395.»

This Judgment should be cited as follows :

“ Request for interpretation of the Judgment of November 2oth, 1950,
in the asylum case,
Judgment of November a7th, 1950: I.C.]J. Reports 1950, p. 395.”

Ne de vente: 59
Sales number

395

INTERNATIONAL COURT OF JUSTICE

1950
November 27th
General List :

YEAR 1950 No. 13

November 27th, 1950

REQUEST FOR
INTERPRETATION OF THE JUDGMENT
OF NOVEMBER 2oth, 1950, IN THE

ASYLUM CASE
(COLOMBIA /PERU)

JUDGMENT

Present : President BASDEVANT; Vice-President GUERRERO;
Judges ALVAREZ, HACKWORTH, WINIARSKI, DE VISSCHER,
Sir Arnold McNair, KLAESTAD, KRYLov, READ, Hsu
Mo ; MM. ArAvzA y Paz SOLDAN and CAICEDO CASTILLA,
Judges ad hoc ; Mr. HAMBRO, Registrar.

In the case concerning the request for interpretation of the Judg-
ment of November 2oth, 1950,

between
the Republic of Colombia,
represented by :

M. J. M. Yepes, Professor, Minister Plenipotentiary, Legal
Adviser to the Ministry for Foreign Affairs of Colombia, former
Senator, as Agent ;

4
ASYLUM CASE (JUDGMENT OF 27 XI 50) 396

assisted by

M. Eduardo Zuleta Angel, former Minister for Foreign Affairs,
Ambassador in Washington, as Counsel :

and, as Advocates,

M. Francisco Urratia Holguin, Ambassador, Delegate to the
United Nations,

M. Alfredo Vasquez, Minister Plenipotentiary, Secretary-General
of the Ministry for Foreign Affairs of Colombia ;

and
the Republic of Peru,
represented by :

M. Carlos Sayän Alvarez, Barrister, Ambassador, former Minister,
former President of the Peruvian Chamber of Deputies, as Agent ;

assisted by

M. Felipe Tudela y Barreda, Barrister, Professor of Constitutional
Law at Lima,

M. Raül Miro Quezada Laos, Barrister,

M. Fernando Morales Macedo R., Parliamentary Interpreter,

M. Juan José Calle y Calle, Secretary of Embassy ;

and, as Counsel,

M. Georges Scelle, Honorary Professor of the University of Paris,
and
M. Julio Lépez Olivan, Ambassador.

THE Court,
composed as above,
delivers the following Judgment :

On November 20th, 1950, the Court delivered its Judgment in
the asylum case between Colombia and Peru. On the very day on
which the Judgment was delivered, the Agent of the Government
of Colombia transmitted to the Registry of the Court a letter in
which, under instructions of his Government, he informed the Court
that the Colombian Government wished to obtain an interpretation
of the said Judgment, in conformity with Articles 60 of the Statute
and 79 and 80 of the Rules.
ASYLUM CASE (JUDGMENT OF 27 XI 50) 307

The letter of the Agent of the Colombian Government reads as
follows :

[Translation]

“x. By order of my Government I have the honour to inform
you of the following :

2. The Government of the Republic of Colombia, faithful to the
international undertakings which it has signed and ratified and, in
particular, the obligation which is laid upon it by Article 94, para-
graph 1, of the Charter of the United Nations, declares its intention
of complying with the decision of the International Court of Justice
in the Colombian-Peruvian asylum case.

3. However, the manner in which the Court has ruled in its
Judgment of November 20th, 1950, had led my Government to
the conclusion that this decision, as has been notified, contains
gaps of such a nature as to render its execution impossible. This
conclusion is based on the following grounds :

I

4. In its Judgment the Court makes the following statement :
‘It is evident that the diplomatic representative who has to deter-
mine whether a refugee is to be granted asylum or not must have
the competence to make such a provisional qualification of any
offence alleged to have been committed by the refugee. He must in
fact examine the question whether the conditions required for
granting asylum are fulfilled. The territorial State would not thereby
be deprived of its right to contest the qualification. In case of
disagreement between the two States, a dispute would arise which
might be settled by the methods provided by the Parties for the
settlement of their disputes’ (Judgment, page 274).

5. In the present case it is beyond doubt that the Parties have
in fact proceeded as the Court indicates in the above-mentioned
text: the Colombian Ambassador in Lima qualified the offence
attributed to the refugee ; the Government of Peru, for its part,
contested this qualification and the dispute which arose on this
point between the two States was brought before the International
Court of Justice.

6. The Court has confirmed the qualification made by the Colom-
bian Ambassador in a manner which is both clear and emphatic.
It has, in fact; declared : ‘the Court considers that the Government
of Peru has not proved that the acts of which the refugee was
accused before January 3rd/4th, 1949, constitute common crimes’
(Judgment, page 281). As a consequence of this declaration, the
Court has rejected the counter-claim ‘in so far as it is founded on
a violation of Article 1, paragraph 1, of the Convention on Asylum
signed at Havana in 1928’ (Judgment, page 288).

7. The qualification made by the Colombian Ambassador of the
political character of the offence attributed to the refugee having
thus been confirmed by the Court, the theoretical question of the

6
ASYLUM CASE (JUDGMENT OF 27 XI 50) 398

right appertaining to the State granting asylum may be left to one
side because it ceases to have any practical effect. As is evident
from the diplomatic correspondence between the Parties, if it is
true that Colombia, from the very beginning of this dispute, has
claimed the right of qualification, it is equally certain that she has
always affirmed that, even if this right could be contested, the
qualification was in fact correct and could not be disregarded
because it had not been proved that M. Haya de la Torre was a
common criminal.

8. In stating that the Government of Peru has not proved that
the offence with which the refugee was charged was a common
crime, the Court has admitted that the qualification made by
Colombia was well founded. In the circumstances a question arises :
must this qualification, which has been declared correct and
approved by the Court, be considered nevertheless as null and
void because a dispute has arisen on the preliminary and theor-
etical question of the right to qualification in matters of asylum ?

II

9. In deciding on the counter-claim of Peru, the Court has found,
on the one hand, ‘that the grant of asylum by the Colombian
Government to Victor Raül Haya de la Torre was not made in
conformity with Article 2, paragraph 2 (“First”), of that Conven-
tion’ [Convention of Havana] (Judgment, page 288).

10. The Court has declared, on the other hand, not only that
‘the grant of asylum is not an instantaneous act which terminates
with the admission, at a given moment, of a refugee to an embassy
or a legation’, but that asylum ‘is granted as long as the continued
presence of the refugee in the embassy prolongs this protection’.

11. It would appear, consequently, that the idea of the Court, in
deciding on one of the aspects of the counter-claim, is that Colombia
might violate the provisions of Article 2, paragraph 2, of the Havana
Convention if she does not surrender the refugee to the Peruvian
authorities.

12. The Court declares, however, that M. Haya de la Torre is a
political refugee and not a common criminal. It declares at the
same time that the Havana Convention, which is the only agree-
ment regulating the relations between Colombia and Peru in matters
of asylum, contains no clause providing for the surrender of a
political refugee.

13. It follows from the foregoing consideration that Colombia
has no obligation to surrender the refugee to the Peruvian author-
ities and that, if she abstains from doing so, she in no way violates
the Havana Convention.

14. Furthermore, the Court expressly states ‘that the question
of the possible surrender of the refugee to the territorial authorities

7
ASYLUM CASE (JUDGMENT OF 27 XI 50) 399

is in no way raised in the counter-claim’ and adds that ‘this ques-
tion was not raised either in the diplomatic correspondence submit-
ted by the Parties or at any moment in the proceedings before the
Court, and in fact the Government of Peru has not requested that
the refugee should be surrendered’ (Judgment, page 280).

15. On the basis of the foregoing considerations, it does not seem
possible to suppose that the Court, in deciding that the grant of
asylum was not made in conformity with Article 2, paragraph 2,
of the Havana Convention, intended to order, even in an indirect
manner, that the refugee should be surrendered, or even less that
it intended to declare that Colombia would violate an international
undertaking if she abstained from making the surrender which has
not been ordered by the Court.

Til

16. Consequently, the Government of the Republic of Colombia
has the honour to make a request for an interpretation of the
Judgment of November 2oth, 1950, as follows :

May If PLEASE THE COURT,

In accordance with Articles 60 of the Statute and 79 and 80 of
the Rules of Court, to answer the following questions :

First.—Must the Judgment of November 2oth, 1950, be inter-
preted in the sense that the qualification made by the Colombian
Ambassador of the offence attributed to M. Haya de la Torre, was
correct, and that, consequently, it is necessary to attribute legal
effect to the above-mentioned qualification, in so far as it has been
confirmed by the Court ?

Second.—Must the Judgment of November 2oth, 1950, be inter-
preted in the sense that the Government of Peru is not entitled to
demand the surrender of the political refugee M. Haya de la Torre,
and that, consequently, the Government of Colombia is not bound
to surrender him even in the event of this surrender being requested ?

Thivd.—Or, on the contrary, does the Court’s decision on the
counter-claim of Peru imply that Colombia is bound to surrender
the refugee Victor Raël Haya de la Torre to the Peruvian author-
ities, even if the latter do not so demand, in spite of the fact that
he is a political offender and not a common criminal, and that the
only convention applicable to the present case does not order the
surrender of political offenders ?”’

As the Court dit not include upon the Bench any judge of the

nationality of the Parties, the latter availed themselves of the right
provided by Article 31, paragraph 3, of the Statute. The Judges
ad hoc designated were M. José Joaquin Caicedo Castilla, Doctor
of Law, Professor, former Deputy and former President of the
Senate, Ambassador, for the Government of Colombia, and M. Luis
Alayza y Paz Soldän, Doctor of Law, Professor, former Minister,

8
ASYLUM CASE (JUDGMENT OF 27 XI 50) 400

Ambassador, for the Government of Peru. These Judges made the
solemn declaration provided in Article 20 of the Statute in a public
meeting held on November 23rd, 1950.

The letter of the Agent of the Colombian Government of Novem-
ber zoth, 1950, was communicated on the same day to the Agent of
the Government of Peru, who submitted his observations in the
following letter, dated November 22nd :

[Translation]

“In reply to your letter of November 22nd, 1950, No. 12125,
following your communication of November zoth, No. 12084, I
have the honour to inform you that it was not my intention to
present observations on the request of the Colombian Agent because
that request is clearly inadmissible.

However, in deference to the implied invitation contained in
your second letter, I shall make the following statements :

1.—The Judgment of November 2oth, 1950, is perfectly clear,
except for those who would have made up their minds beforehand
not to understand it. It gives a decision in the clearest way possible
on all submissions presented by both Parties. Therefore, we consider
that the Judgment does not call for interpretation.

2.—Moreover the request of the Colombian Agent is inadmis-
sible for legal reasons :

(a) because it is not a request for interpretation. In wrongly
alleging that the Judgment contains ‘gaps’, it seeks, in fact, to
obtain a new decision, supplementing the first ;

(b) because the conditions laid down in Article 60 of the Statute
of the Court concerning a request for interpretation have thereby
been disregarded. In fact, the Colombian request is an attempt to
disregard the statutory provision of Article 60, whereby the Court’s
judgments are final and without appeal.

3.—In those conditions, the hidden purpose of the Colombian
Agent’s request is obviously an attempt to escape the legal conse-
quences necessarily deriving from the Judgment.

4.—This intention seems all the more probable because, in a
case of this importance, it would have seemed logical and natural
for the two Governments concerned to take time for careful study
of the text of the decision, whereas the request of the Colombian
Agent came only a few hours after the public hearing, and its
contents had even been communicated to the press beforehand.
Personally, I would not have been in a position to take such respons-
ibilities before my own Government.

Asking you to transmit to the Court the foregoing observations,

I have, etc.”

The observations of the Agent of the Peruvian Government were
communicated to the Agent of the Government of Colombia. The

9
ASYLUM CASE (JUDGMENT OF 27 XI 50) 401

latter, by a letter dated November 24th, 1950, replied in the
following terms :

[Translation]

“T have the honour to acknowledge receipt of your communication
No. 12114 of 23rd instant, transmitting to me a certified true copy
of the letter from the Agent of the Peruvian Government, dated
November 22nd, 1950.

I shall disregard certain remarks and insinuations contained in
this letter, because, out of respect for the Court, I consider that it
should not be made use of for the transmission of disparaging
remarks concerning any government.

The Peruvian Agent declares that the Judgment of Novem-
ber 20th, 1950, is ‘perfectly clear’. The Colombian Government,
on the contrary, as indicated in the request for interpretation,
declares that it is not. Therefore, there is a manifest dispute between
the Parties as to the meaning and scope of the Judgment.

The Peruvian Agent also says that ‘the hidden purpose of the
Colombian Agent’s request is obviously an attempt to escape the
legal consequences necessarily deriving from the Judgment’. If
the Peruvian Agent means by this that the legal consequences
which Colombia is trying to evade consist in the obligation to
surrender M. Haya de la Torre, the opposition between the two
Governments could not be indicated more clearly, because Colombia
considers that no such conclusion can be drawn from the Judgment.
If, on the other hand, the Peruvian Agent believes that Colombia
is not under the obligation to surrender the refugee, he must say
so clearly and indicate what would then be ‘the necessary legal
consequences’ which Colombia is trying to evade.

I take the liberty of pointing out that the main purpose of the
request for interpretation is to obtain a declaration stating whether,
in rejecting the Peruvian counter-claim ‘as far as it is founded
on a violation of Article 1, paragraph 1, of the Convention on
Asylum signed at Havana in 1928’, it was the Court’s intention
to say that Colombia is not bound to surrender M. Haya de la
Torre to the Peruvian authorities.

I further point out that the request for interpretation also
endeavours to obtain a declaration as to whether the Court, when
it ‘found that the grant of asylum by the Colombian Government
to Victor Rati] Haya de la Torre was not made in conformity with
Article 2, paragraph 2 (“First”), of that Convention’, meant that
the Government of Peru has the right to demand the surrender
of M. Haya de la Torre.

This is a divergence of views, a difference of opinion, a dispute
as to the meaning and scope of the Judgment of November 2oth,
the binding force of which I have asked the Court to define.”

k
* *

The request for interpretation now before the Court is based on
Article 60 of the Statute which reads as follows :

10
ASYLUM CASE (JUDGMENT OF 27 XI 50) 402

“The judgment is final and without appeal. In the event of
dispute as to the meaning or scope of the judgment, the Court
shall contrue it upon the request of any party.”

Thus it lays down two conditions for the admissibility of such a
request :

(1) The real purpose of the request must be to obtain an inter-
pretation of the judgment. This signifies that its object must
be solely to obtain clarification of the meaning and the scope
of what the Court has decided with binding force, and not to
obtain an answer to questions not so decided. Any other
construction of Article 60 of the Statute would nullify the
provision of the article that the judgment is final and without
appeal.

(2) In addition, it is necessary that there should exist a dispute
as to the meaning or scope of the judgment.

To decide whether the first requirement stated above is fulfilled,
one must bear in mind the principle that it is the duty of the Court
not only to reply to the questions as stated in the final submissions
of the parties, but also to abstain from deciding points not included
in those submissions.

The three questions raised in this proceeding by the Colombian
Government must be considered in the light of this principle.

The first question concerns the qualification which was in fact
made by the Colombian Ambassador at Lima of the offence imputed
to the refugee. It seeks to obtain from the Court a declaration that
this qualification was correct and that legal effect should be attrib-
uted to it: The Court finds that this point was not raised in the
submissions of the Colombian Government in the proceedings
leading up to the Judgment of November 2oth, 1950. In those
submissions, the Court was asked to pronounce only on the claim
expressed in abstract and general terms, that Colombia as the
country granting asylum, was competent to qualify the offence by
a unilateral and final decision binding on Peru.

The circumstance that, before the proceedings in Court in the
principal case, the qualification which was in fact made by the
Colombian Ambassador had given rise to discussions between the
two Governments through a diplomatic correspondence is irrelevant.
As regards that part of the counter-claim of the Peruvian Govern-
ment which was based on a violation of Article 1, paragraph 1, of
the Havana Convention of 1928, it is to be noted that, in order to
decide this question, it was sufficient for the Court to examine
whether the Peruvian Government had proved that Haya de la
Torre was accused of common crimes prior to the granting of

II
ASYLUM CASE (JUDGMENT OF 27 XI 50) 403

asylum, namely, January 3rd, 1949. The Court found that this had
not been proved by the Peruvian Government. The Court did not
decide any other question on this point.

Questions 2 and 3 are submitted as alternatives, and may be
dealt with together. Both concern the surrender of the refugee to
the Peruvian Government and the possible obligations resulting
in this connexion, for Colombia, from the Judgment of Novem-
ber 20th, 1950. The Court can only refer to what it declared in its
Judgment in perfectly definite terms : this question was completely
left outside the submissions of the Parties. The Judgment in no
way decided it, nor could it do so. It was for the Parties to present
their respective claims on this point. The Court finds that they did
nothing of the kind.

The “gaps” which the Colombian Government claims to have
discovered in the Court’s Judgment in reality are new questions,
which cannot be decided by means of interpretation. Interpretation
can in no way go beyond the limits of the Judgment, fixed in
advance by the Parties themselves in their submissions.

In reality, the object of the questions submitted by the Colom-
bian Government is to obtain, by the indirect means of inter-
pretation; a decision on questions which the Court was not called
upon by the Parties to answer.

Article 60 of the Statute provides, moreover, that interpretation
may be asked only if there is a “dispute as to the meaning or scope
of the judgment”. Obviously, one cannot treat as a dispute, in the
sense of that provision, the mere fact that one Party finds the judg-
ment obscure when the other considers it to be perfectly clear. A
dispute requires a divergence of views between the parties on
definite points; Article 79, paragraph 2, of the Rules confirms
this condition by stating that the application for interpretation
“shall specify the precise point or points in dispute”.

It is evident that this condition does not exist in the present case.
Not only has the existence of a dispute between the Parties not been
brought to the attention of the Court, but the very date of the
Colombian Government’s request for interpretation shows that
such a dispute could not possibly have arisen in any way whatever.

The Court thus finds that the requirements of Article 60 of the

Statute and of Article 79, paragraph 2, of the Rules of Court, have
not been satisfied.

12
ASYLUM CASE (JUDGMENT OF 27 XI 50) 404

FOR THESE REASONS,
THE COURT,
by twelve votes to one,

Declares the request for interpretation of the Judgment of
November 2oth, 1950, presented on the same day by the Govern-
ment of the Republic of Colombia, to be inadmissible.

Done in French and English, the French text being authoritative,
at the Peace Palace, The Hague, this twenty-seventh day of
November, one thousand nine hundred and fifty, in three copies,
one of which will be placed in the archives of the Court and the
others transmitted to the Governments of the Republic of Colombia
and of the Republic of Peru respectively.

(Signed) BASDEVANT,
President.

(Signed) E. HAMBRO,
Registrar.

M. Caicepo GasTiLLA, Judge ad hoc, declares that he is unable
to concur in the Judgment of the Court because, in his opinion,
Article 60 of the Statute can be interpreted more liberally, as shown
by the Permanent Court of International Justice in the Chorzéw
Factory case. He recognizes, however, that it is open to the Parties
to come before the Court if a divergence of views satisfying the
precise conditions required by this Judgment were to be submitted
to it.

(Initialled) J. B.
(Initialled) E. H.

13


220

DÉCLARATION DE M. LE JUGE RANJEVA, VICE-PRÉSIDENT

Violation de la liberté de commerce et non-violation de la liberté de commerce
entre les territoires des deux Parties — Compétence discrétionnaire de la Cour
et ordonnancement du raisonnement — Percement du voile du différend — Elé-
ments constitutifs de la demande: objet et cause, article 38, paragraphe 2, du
Règlement — Jura novit curia — Intérét de la notion de cause de la demande.

1. Je souscris aux conclusions suivantes de l’arrêt:

— labsence de justification juridique de la destruction des plates-formes
sur la base de l’alinéa d) du paragraphe | de l’article XX;

— la violation de la liberté de commerce consécutive à la destruction des
plates-formes;

— le rejet de la demande de réparation introduite par le demandeur;

— le rejet des demandes reconventionnelles.

Le bien-fondé de la dissociation de la liberté de commerce en général de
l’une des parties contractantes de la liberté de commerce entre les terri-
toires des parties au traité de 1955 peut faire l’objet de discussions.

2. La liberté dont dispose la Cour pour fixer l’ordre de traitement des
questions de droit soulevées dans un différend a un caractère discrétion-
naire; elle n’implique pas la faculté pour la juridiction de déterminer de
manière arbitraire l’ordonnancement de son raisonnement. Le choix de la
méthode de raisonnement dépend directement de l’économie générale du
différend: l’objet du différend, les demandes des parties, les arguments
exposés, la stratégie de l’argumentation. Il est difficile en pratique d’invoquer
de manière dogmatique des impératifs de logique juridique ou judiciaire,
qui, à l’analyse, relèvent plus de la logique formelle. La méthode de traite-
ment, dans ces conditions, reste unique et particulière à chaque différend.

3. Dans la présente affaire, la Cour ne s’est pas laissé bloquer par les
obstacles formalistes et formels. Les termes du problème ont été, en effet,
contaminés par des questions considérées périphériques sur lesquelles les
Parties se sont étendues plus que de raison. Il en est résulté le caractère
artificiel de l’objet du différend, des demandes présentées par les Parties
et de la stratégie, sinon les artifices de l’argumentation. Face à ces actes
de divertissement, la Cour a percé le voile du différend en se référant direc-
tement aux actes, comportements et déclarations contemporains aux faits
générateurs du litige. Elle a été amenée à traiter de manière préalable de
la licéité du recours à la force au regard des dispositions de l’article XX,
paragraphe 1, alinéa d), du traité de 1955.

63
221 PLATES-FORMES PÉTROLIÈRES (DÉCL. RANJEVA)

4. Le percement du véritable cœur du différend représente le respect
des obligations de transparence dans l’analyse des faits et le respect de la
vérité dans l’interprétation du fond du droit. Il implique le respect strict
du droit applicable, en l’espèce, d’abord le droit conventionnel du traité
de 1955 et ensuite, à titre de cadre d’interprétation de l'instrument
conventionnel, le droit international, c’est-à-dire le droit de la Charte des
Nations Unies et le droit international coutumier. Le percement du voile
du cœur du différend est une condition nécessaire, au moins une contri-
bution utile, pour un règlement des différends internationaux sur de meil-
leures bases.

5. J'aurais souhaité utiliser une autre voie procédurale pour parvenir
aux mêmes solutions que la Cour dans le présent différend. Cette mé-
thode ne justifie pas une opinion car elle s’écarte des méthodes tradition-
nelles. Elle se fonde sur une analyse intrinsèque de la demande ou de la
matière litigieuse. Elle comporte deux éléments indispensables : l’objet
(quid) et la cause (cur); ces éléments sont indispensables pour déter-
miner et caractériser la substance d’un différend bien qu'il soit difficile de
définir avec exactitude le contenu de chacun de ces éléments.

6. La définition de la cause de la demande, le pourquoi de la demande,
est controversé en doctrine en raison de son caractère malléable et la conno-
tation métaphysique qu’elle comporte. L’article 40 du Statut se borne
à exiger parmi les mentions obligatoires l'indication de l’objet de la
demande dans la requête introductive d’instance. La notion de cause
transparaît cependant de manière fugace dans les termes du paragraphe 2
de l’article 38 du Règlement, la requête « indique en outre la nature pré-
cise de la demande et contient un exposé succinct des faits et moyens sur
lesquels cette demande repose» (les italiques sont de moi). Le Règlement
invite le demandeur à exposer les fondements en fait et en droit de la
demande. Cet artifice de rédaction ne fait que transférer la difficulté sans
la résoudre. Le problème de la cause ici est en effet lié à la compatibilité
de la base consensuelle de compétence de la Cour avec le principe jura
novit curia. En la présente affaire, il n’y a pas lieu de s’étendre sur les
controverses doctrinales, les difficultés de la distinction entre objet et
cause et les éléments constitutifs de la cause, car ces questions ne sont pas
traitées directement dans l’arrêt.

7. La notion de cause pose en définitive un double problème: celui de
la mesure de l’emprise du juge sur la maîtrise de la règle de droit à appli-
quer au différend qui lui est soumis et celui de la détermination de la règle
et de la méthode qui lui semblent les plus appropriées. Par-delà la
stratégie Judiciaire et la technique d’argumentation, la Cour ne doit pas
s’interdire de s’assurer de la volonté réelle de chaque Partie. L’arrét n’a
pas manqué de relever en ses paragraphes 32 et 37 la position de la Partie
défenderesse; celle-ci, en définitive, laisse à la Cour le soin de déterminer
la méthode de traitement du lien entre l’article X, paragraphe 1, base de
la compétence, et l’article XX, paragraphe 1, alinéa d), qui est la cause au
fond du droit applicable et aussi de la demande en justice. On ne peut que

64
222 PLATES-FORMES PÉTROLIÈRES (DÉCL. RANJEVA)

regretter que la Cour n’ait pas saisi l’occasion pour résoudre en fait de
manière empirique un problème délicat et mieux asseoir la justification de
l’ordre de traitement des questions.

(Signé) Raymond RANJEVA.

65


                     194

                              DISSENTING OPINION OF JUDGE GREENWOOD

                        Legal criteria for indication of provisional measures — Necessity for caution on
                     the part of the Court — Undertaking given by the Attorney-General of Australia
                     dated 21 January 2014 — Formal undertaking given by a State is legally binding
                     — Presumption that State will act in good faith in honouring its commitment to
                     the Court — Undertaking sufficient to protect plausible rights of Timor-Leste
                     from harm pending judgment on the merits — Effect of undertaking is that there
                     is no real and imminent risk of irreparable harm to Timor-Leste’s rights —
                     Conditions for indication of provisional measures accordingly not satisfied in
                     respect of seized material — Plausible rights of Australia not taken into account
                     by Order — Real and imminent risk of Australia’s interference with Timor-Leste’s
                     future communications with its lawyers.

                        1. Although I agree with much of the reasoning in the Order, I have
                     voted against the first two paragraphs of the dispositif, because I consider
                     that the undertaking given to the Court by the Attorney-General of Aus‑
                     tralia makes them unnecessary. I am also concerned that the Court, while
                     rightly determined to protect the rights claimed by Timor-Leste, has
                     ignored the rights asserted by Australia.

                                      The Legal Criteria for the Indication
                                      of Provisional Measures of Protection

                       2. The Court’s power to indicate provisional measures, pending a judg‑
                     ment on the merits, is conferred by Article 41 of the Statute, paragraph 1
                     of which provides — “The Court shall have the power to indicate, if it
                     considers that circumstances so require, any provisional measures which
                     ought to be taken to preserve the respective rights of either party.” While
                     the language of Article 41 does not make this point clear, the Court has
                     decided that “orders on provisional measures under Article 41 have bind
                     ing 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 the parties (Armed Activities on the Territory of the Congo
                     (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports
                     2005, p. 258, para. 263) the breach of which may itself give rise to action
                     by the Court at the merits phase, even if the Court does not otherwise
                     grant relief on the merits.
                       3. Most legal systems have developed a power of this kind to enable a
                     court or tribunal to issue an interim order to ensure that the rights claimed
                     by one or both parties are not negated by anything done by a party

                     51

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                     195 	        seizure and detention (diss. op. greenwood)

                     between the commencement of a case and the final judgment on the merits
                     (see, e.g., L. Collins, “Provisional and Protective Measures in Inter
                     national Litigation”, Recueil des cours de l’Académie de droit international
                     de La Haye, Vol. 234 (1992-III), p. 9). It is in the nature of such measures
                     that they almost always have to be ordered at short notice and without
                     the kind of detailed examination of the legal issues or the evidence which
                     takes place when a court makes a decision on the merits. These are neces‑
                     sary features of a system of interim protection. Since provisional mea‑
                     sures are a response to an urgent risk of irreparable harm, it would be
                     impossible to make the indication of such measures contingent upon a
                     court first establishing that it had jurisdiction, that the rights asserted
                     actually existed and that they were applicable on the facts of the case.
                     Nevertheless, the result is that the International Court of Justice, a court
                     whose jurisdiction is derived from the consent of the parties (see, e.g.,
                     Armed Activities on the Territory of the Congo (New Application : 2002)
                     (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admis‑
                     sibility, Judgment, I.C.J. Reports 2006, p. 39, para. 88), imposes a legal
                     obligation upon a party before it decides whether that consent has been
                     given and in order to protect rights the existence and application of which
                     has not yet been established. A degree of caution in the exercise of the
                     Court’s powers under Article 41 is thus called for.

                        4. That caution manifests itself, first, in the conditions which the Court
                     has developed, over the years, as prerequisites for the exercise of its power
                     under Article 41 of the Statute. Thus, the Court must satisfy itself (a)
                     that the jurisdictional provisions relied upon appear, prima facie, to
                     afford a basis for the jurisdiction of the Court ; (b) that the rights asserted
                     are at least plausible, that is to say that there is a realistic prospect that
                     when the Court rules upon the merits of the case they will be adjudged to
                     exist and to be applicable ; (c) that there exists a link between those rights
                     and the measures to be ordered ; and (d) that there is a real and imminent
                     risk that, unless measures are ordered, irreparable harm will be caused to
                     the rights in dispute before the Court gives its final decision on the merits
                     (see, e.g., 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. 17, para. 49, p. 18, para. 53, p. 20, para. 60
                     and pp. 21‑22, paras. 63-64).
                        5. It is the way in which the Court has dealt with the fourth require‑
                     ment in the present case which has forced me to dissent (see para‑
                     graphs 22-29, below). That requirement actually embraces several different
                     but related elements all of which must be present if the Court is to indi‑
                     cate provisional measures. The first element is that the Court must be
                     satisfied that there is a real and imminent risk that the rights which might
                     be adjudged to belong to a party will suffer irreparable harm before judg‑
                     ment is given on the merits, so that, in that sense at least, the judgment on
                     the merits would be rendered nugatory. The second element is that the

                     52

8 CIJ1061.indb 232                                                                                25/03/15 08:46

                     196 	           seizure and detention (diss. op. greenwood)

                     measures which the Court is proposing to indicate must be considered
                     necessary to prevent the occurrence of such harm. Implicit in that second
                     element is a third one, namely that the measures should not go beyond
                     what is considered necessary to achieve that end. That is particularly
                     important where those measures may restrict — possibly for some
                     years — the exercise by the party to whom they are directed of rights
                     which that party may subsequently be found to possess.

                        6. The need for caution is also reflected in the Court’s approach to the
                     relationship between its role at the provisional measures and merits
                     phases of a case. Proceedings for provisional measures are dealt with in
                     the Rules of Court under the heading “incidental proceedings”. They are
                     incidental, or ancillary, to the proceedings on the merits in that the Court
                     may order such measures only if to do so is necessary for the preservation
                     of rights which it may, at the merits phase, decide belong to one of the
                     parties and are applicable to the facts proven at that phase 1. In this
                     respect, I believe that it is misleading to speak of provisional measures as
                     autonomous. They are autonomous only in the sense that a State may be
                     held responsible for violation of a provisional measure notwithstanding
                     that it prevails on the merits. In addressing a request for provisional mea‑
                     sures, however, the Court has to be careful not to stray into matters
                     which can properly be decided only at the merits phase. Thus, while the
                     Court insists that measures will be ordered to protect claimed rights only
                     if those rights are plausible, it should not go beyond that preliminary
                     appraisal and do or say anything which prejudges questions which can
                     only be decided on the merits after the Court has determined that it has
                     jurisdiction and after it has had the benefit of full argument on the law
                     and heard the evidence which the parties wish to put before it. Nor should
                     the Court allow itself to be influenced, at the provisional measures stage,
                     by consideration of the likely outcome on the merits.

                       7. Finally, while the Court may not indicate provisional measures
                     unless the requirements set out in paragraph 4, above, are met, the fact
                     that they are met does not oblige it to indicate such measures. Once those
                     requirements are satisfied, the Court has a discretion, as the language of
                        1 It might seem that the measure, frequently included in an order for provisional

                     measures, by which the Court enjoins both parties to refrain from any action which might
                     aggravate or extend the dispute (see, e.g., 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. 27, para. 86 (3)) is an exception to this principle. In fact,
                     the exception is more apparent than real. A measure of this kind is not normally free-
                     standing but is indicated where the Court also indicates measures for the protection of
                     rights. Moreover, the link to the merits is still present, since the dispute which the parties
                     are required not to aggravate or extend is the dispute on which the Court is being asked to
                     rule at the merits phase.

                     53

8 CIJ1061.indb 234                                                                                25/03/15 08:46

                     197 	        seizure and detention (diss. op. greenwood)

                     Article 41 of the Statute makes clear. In the exercise of that discretion, the
                     Court has to consider carefully the rights asserted by both parties. In
                     seeking to protect the plausible rights asserted by one party from irrepa‑
                     rable harm, it should always be mindful of the effect which compliance
                     with its Order may have on the ability of the other party to exercise plau‑
                     sible rights of its own. In some national jurisdictions this consideration
                     has led courts to make the grant of interlocutory relief to a party subject
                     to a requirement that that party undertake to indemnify the other party
                     for the costs of compliance with the interlocutory order in the event that
                     the first party is unsuccessful at the merits stage. This kind of condition
                     affords some protection to the rights which may subsequently be adjudged
                     to belong to the second party and makes interlocutory relief less one‑sided.
                     The International Court of Justice has never sought to impose such a
                     condition and the nature of most of the cases which come before it
                     (including the present case) is such that a financial indemnity of this kind
                     would usually be neither sufficient nor appropriate. Nevertheless, that
                     does not excuse the Court from the duty to ensure that any provisional
                     measures which it might indicate do not achieve protection for the rights
                     of one party at the expense of undue harm to the rights of the other. In
                     this respect also a degree of caution is required.

                                Application of the Criteria to the Present Case

                        8. When one comes to apply these criteria to the facts of the present
                     case, it becomes apparent that this case calls for particular sensitivity on
                     the part of the Court. The background to the request by Timor‑Leste for
                     provisional measures is most unusual. First, in an arbitration which it has
                     commenced, Timor‑Leste alleges that Australian officials engaged in
                     conduct on the territory of Timor‑Leste, as a result of which Australia
                     obtained an unfair advantage in treaty negotiations with Timor‑Leste. In
                     advancing this allegation, Timor‑Leste proposes to rely upon the testi‑
                     mony of a former officer of the Australian Secret Intelligence Service
                     (“ASIS”). Secondly, Timor‑Leste maintains that officers of the Australian
                     Security Intelligence Organisation (“ASIO”), in violation of Timor‑Leste’s
                     rights under international law, seized documents relating to the first alle‑
                     gation and other papers concerning Timor-Leste’s legal position vis-à-vis
                     Australia from the Canberra office of an Australian lawyer who is advi‑
                     sing Timor‑Leste. Thirdly, Australia maintains that the public statements
                     made by Timor‑Leste and its Australian lawyer suggest that a former
                     ASIS officer committed a crime under Australian law in disclosing infor‑
                     mation about ASIS activities and may thereby have endangered the
                     national security of Australia, including putting at risk the lives of other
                     ASIS officers.

                     54

8 CIJ1061.indb 236                                                                                25/03/15 08:46

                     198 	        seizure and detention (diss. op. greenwood)

                        9. Even this brief summary of this background suggests that the Court
                     needs to be especially cautious in the present case. In the first place,
                     important elements of this background are the subject of proceedings
                     before another tribunal and are not, therefore, matters on which this
                     Court can pronounce, or by which it should be influenced. It is for the
                     arbitration tribunal, not the Court, to decide whether Timor‑Leste’s alle‑
                     gations that Australia bugged its government offices in Dili and thus
                     obtained important information regarding Timor‑Leste’s stance in the
                     negotiation of a treaty on the resources of the Timor Sea are well‑founded
                     and, if so, what are the consequences for the validity of the treaty and the
                     responsibility of Australia. Whether a former ASIS officer has violated
                     the criminal law of Australia is a matter for the Australian courts. The
                     issue before this Court is confined to the allegations regarding the seizure
                     of documents from the office of Timor‑Leste’s Australian lawyer and the
                     justification which might be put forward by Australia for that seizure.
                     Moreover, that issue is one for the merits phase of the present proceed‑
                     ings. The need which arises in all provisional measures cases to ensure
                     that the Court does not stray into matters which can only be considered
                     on the merits is here complicated by the fact that the merits of the case
                     before the Court are bound up with, but have to be kept separate from,
                     the merits of the proceedings before the arbitration tribunal and any pro‑
                     ceedings which might be brought before the Australian courts.

                        10. The task of the Court is also complicated by the nature of the alle‑
                     gations. The adjudication of issues involving national security is seldom
                     an easy matter. In the present case the national security of both
                     Timor‑Leste and Australia is potentially at stake. The handling of intel‑
                     ligence material and allegations regarding the activities of intelligence ser‑
                     vices is notoriously difficult in any legal system. This consideration
                     compounds the difficulty which always faces the Court at the provisional
                     measures stage of a case, namely that there is very little evidence or infor‑
                     mation regarding the facts before the Court. In the present case,
                     Timor‑Leste is understandably concerned that the raid on its lawyer’s
                     office has placed in the hands of the Australian Government legal and
                     technical advice and correspondence which could give Australia a marked,
                     and most unfair, advantage in the arbitration proceedings and in any
                     future negotiations with Timor‑Leste over the Timor Sea but it is unsure
                     precisely what documents Australia has in its possession. Australia, hav‑
                     ing sealed the documents in response to the request of the President
                     (Order, paras. 9 and 37) has told the Court that it does not know what is
                     in those documents (see the statements by the Solicitor‑General of Aus‑
                     tralia (CR 2014/4, pp. 9 and 17 (Gleeson))) but expresses concern that
                     they may contain information relevant to safeguarding the lives of mem‑
                     bers of its intelligence services and its methods of gathering intelligence.
                     The Court is thus obliged to proceed in a difficult matter with even less

                     55

8 CIJ1061.indb 238                                                                                25/03/15 08:46

                     199 	           seizure and detention (diss. op. greenwood)

                     information than it would usually have on a request for provisional mea‑
                     sures.

                        11. None of this means that the Court should be deterred from exercis‑
                     ing its powers under Article 41 of the Statute. The Court has a responsi‑
                     bility to do what it can to ensure that plausible rights asserted by a State
                     in proceedings before it are not irreparably damaged before the Court
                     rules on jurisdiction or merits. Nevertheless, it does suggest that the Court
                     must tread carefully, ensuring that the criteria for the indication of provi‑
                     sional measures are indeed met, that it is sensitive to the plausible rights
                     of both Parties and that it does not go beyond what is necessary for the
                     protection of the rights of either.

                       12. I agree with the Court that the first three requirements for the indi‑
                     cation of provisional measures are met. That the provisions relied upon
                     by Timor‑Leste to found the jurisdiction of the Court appear, at least
                     prima facie, to afford a basis of jurisdiction is clear beyond doubt and is
                     not challenged by Australia 2. The Order quite rightly finds that
                     Timor‑Leste has demonstrated that it has plausible rights. I agree both
                     with the Court’s definition of those plausible rights — “namely, the right
                     to conduct arbitration proceedings or negotiations without interference
                     by Australia, including the right of confidentiality of and non‑interference
                     in its communications with its legal advisers” (Order, para. 28) — and
                     with its implicit decision that it is unnecessary at the present stage of the
                     proceedings to enquire into the broader rights asserted by Timor-Leste. I
                     am not sure that those rights may be derived from Articles 2 (1) and 2 (3)
                     of the United Nations Charter, as opposed to a general principle of law
                     concerning the confidentiality of communications with legal advisers, but
                     that is a matter for the merits. Finally, I agree that there is a link between
                     the rights asserted by Timor‑Leste and the measures which the Court has
                     indicated.

                       13. Where I must part company with the Court is in the application of
                     the fourth requirement, namely that the measures must be necessary to
                     prevent a real and imminent risk of irreparable harm to those rights. The
                     majority has found that such a risk exists notwithstanding the undertak‑
                     ing given by the Attorney‑General of Australia to the Court. I do not
                     agree. Save in one respect, I believe that the undertaking is sufficient to
                     prevent the harm feared by Timor‑Leste. To see why that is so, it is neces‑
                     sary to examine the undertaking in some detail.

                        2 Australia has, however, reserved the right to challenge the jurisdiction of the Court or

                     the admissibility of the Application at a later stage.

                     56

8 CIJ1061.indb 240                                                                                25/03/15 08:46

                     200 	        seizure and detention (diss. op. greenwood)

                        14. Australia has given more than one undertaking to this Court and to
                     the arbitration tribunal but it is only the undertaking dated 21 Janu‑
                     ary 2014 that is relevant to whether or not there exists a risk of irreparable
                     harm. The other undertakings were either subsumed by this one or are
                     concerned only to preserve the status quo pending the Court’s ruling on
                     the request for provisional measures. Thus, following the letter of
                     18 December 2013 from the President of the Court, in the exercise of his
                     powers under Article 74 (4) of the Rules of Court (Order, para. 9), Austra‑
                     lia placed the documents under seal and undertook that no official of Aus‑
                     tralia would have access to them until the Court rendered its decision on
                     the request for provisional measures (ibid., para. 37). While this undertak‑
                     ing was a very proper response to the President’s letter, it will expire on the
                     delivery of the present Order and is therefore of no relevance to the ques‑
                     tion whether provisional measures are necessary in respect of the period
                     which will elapse between the Order and the final judgment of the Court.

                        15. The undertaking of 21 January 2014 is of an entirely different
                     character. In a letter of that date, the Attorney-General stated that :

                            “Whereas
                          A. I am the Attorney‑General of the Commonwealth of Australia,
                             having responsibility, inter alia, for the administration of the Aus‑
                             tralian Security Intelligence Organisation Act 1979 and for the
                             conduct of these proceedings ; and
                          B. I am aware that the Australian Security Intelligence Organisation
                             (‘ASIO’) executed a warrant at premises occupied by the law firm
                             of Mr. Bernard Collaery and that in execution of that warrant,
                             certain material (‘the Material’) was taken into possession by
                             ASIO ; and
                          C. On 19 December 2013, I made a written undertaking to an Arbi‑
                             tral Tribunal constituted under the 2002 Timor Sea Treaty relat‑
                             ing to restrictions on the use of the Material ; and

                          D. On 20 January 2014, the Government of Timor‑Leste raised
                             before the International Court of Justice (‘the Court’) concerns
                             relating to the use of the Material in contexts unrelated to the
                             arbitration.
                            I declare to the Court that :
                          1. I have not become aware or sought to inform myself of the con‑
                              tent of the Material or any information derived from the Mat
                              erial ; and
                          2. I am not aware of any circumstance which would make it neces‑

                     57

8 CIJ1061.indb 242                                                                                25/03/15 08:46

                     201 	        seizure and detention (diss. op. greenwood)

                             sary for me to inform myself of the content of the Material or any
                             information derived from the Material ; and
                          3. I have given a Direction to ASIO that the content of the Material
                             and any information derived from the Material, is not under any
                             circumstances to be communicated to any person for any purpose
                             other than national security purposes (which include potential law
                             enforcement referrals and prosecutions) until final judgment in
                             this proceeding or until further or earlier order from the Court.

                            I undertake to the Court that until final judgment in this proceed‑
                          ing 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 referred to in
                                  Recital C.”
                       As the present Order records, the Agent of Australia stated before the
                     Court that the Attorney‑General had the authority to bind Australia as a
                     matter of both Australian and international law (CR 2014/2, p. 9 (Reid)
                     and CR 2014/4, p. 27 (Reid), quoted in paragraph 44 of the Order).

                       16. The Attorney-General’s undertaking was clarified by the answers
                     given by Australia to questions asked by Members of the Court. In
                     response to the question “[u]nder what circumstances would the under‑
                     taking of the Attorney-General expire prior to this Court’s Judgment”
                     (CR 2014/2, p. 49), the Solicitor-General of Australia replied :
                          “it will not expire. All the words in question were intended to do was
                          to allow for a possible variation after the Court so ordered. There are
                          no circumstances, other than those referred to in subparagraph 2,

                     58

8 CIJ1061.indb 244                                                                                25/03/15 08:46

                     202 	        seizure and detention (diss. op. greenwood)

                          which would require a variation. The purpose of subparagraph 2 was
                          that if circumstances arose where it became necessary — for reasons
                          currently unanticipated — for the Attorney-General to inform him‑
                          self of the material, Australia will first bring the matter to [the Court],
                          on notice to Timor-Leste, and will not act before [the Court has] been
                          able to consider the matter.” (CR 2014/4, p. 20 (Gleeson).)

                     The undertaking was thus of indefinite duration and would be varied only
                     with the consent of the Court.
                       17. Australia was also asked about the relationship between subpara‑
                     graph (3) and subparagraph (4) of the undertaking “in light of the fact
                     that subparagraph (4) begins with the phrase ‘without limiting the
                     above’”. The question was :
                            “If Australia wishes, for ‘national security purposes’, to provide the
                          material or information derived from the material to a part of the
                          Australian Government that has responsibility for the matters
                          described in subparagraph (4), could it do so consistent with the
                          Undertaking ?” (CR 2014/2, p. 49.)
                     The Solicitor-General’s answer was categorical —
                            “The answer to your second question is ‘no’.
                            The purpose of subparagraph (4) was only to clarify that matters
                          concerning the Timor Sea and related negotiations, as well as the
                          conduct of these Court proceedings and of the Tribunal, fall outside
                          the ‘national security’ purpose referred to in subparagraph (3).”
                          (CR 2014/4, p. 20 (Gleeson).)
                     In other words, Australia was undertaking that, except with the consent
                     of the Court, none of the material seized, or information derived there‑
                     from, would be communicated to anyone involved in the proceedings
                     before this Court or the proceedings before the arbitration tribunal or
                     anyone who might become involved in any future negotiations regarding
                     the Timor Sea which might take place between Australia and Timor‑Leste.
                        18. The undertaking related to future disclosure of the material seized
                     or information derived therefrom but, in answer to another question
                     from a Member of the Court (CR 2014/2, p. 49), the Solicitor-General of
                     Australia gave an undertaking that no information derived from that
                     material or notes taken during the execution of the search warrant had
                     already been disclosed to persons involved in the arbitration proceedings
                     or who might be involved in any future negotiations regarding the Timor
                     Sea (CR 2014/4, pp. 20‑21 (Gleeson)).

                       19. Lastly, a Member of the Court asked Australia :

                           “In the event of a prosecution in Australia, will any of the docu‑
                          ments seized or information derived from those documents be dis‑

                     59

8 CIJ1061.indb 246                                                                                25/03/15 08:46

                     203 	        seizure and detention (diss. op. greenwood)

                          closed in court in such a way that those documents or that information
                          will be likely to come to the notice of persons involved in the arbitra‑
                          tion, in the proceedings in this Court or in any negotiations [regarding
                          the Timor Sea] ?” (CR 2014/2, pp. 49‑50.)
                     The Solicitor-General replied :
                            “[I]f the documents remain in the hands of ASIO or the prosecu‑
                          tors, Australia’s approach would be to make the appropriate appli‑
                          cation to the Court [i.e., the Australian court] under the National
                          Security Information (Criminal and Civil Proceedings) Act 2004
                          which can be applied to ensure that the information does not come
                          to the notice of persons referred to in the question.

                             The Attorney-General undertakes to you that in the event of such
                          a prosecution, he will direct the Commonwealth Director of Public
                          Prosecutions to invoke the relevant provisions of that Act. And, in
                          the unlikely event that a prosecution took place before the resolution
                          of this matter, the Attorney-General, through me, undertakes that he
                          will inform the Court [i.e., the Australian court before which the pros‑
                          ecution takes place] of the undertaking I have just given you, he will
                          seek the appropriate orders to limit the dissemination of the informa‑
                          tion. And in the unlikely event the orders were not made, the
                          Attorney-General will bring the matter back to this Court before any
                           further action is taken in Australia.” (CR 2014/4, p. 21 (Gleeson).)

                        20. The Court has in the past taken into account a formal undertaking
                     regarding future conduct of the kind given by Australia and concluded
                     that, in the light of that undertaking, no risk of irreparable harm existed
                     (see Questions relating to the Obligation to Prosecute or Extradite (Bel‑
                     gium v. Senegal), Provisional Measures, Order of 28 May 2009,
                     I.C.J. Reports 2009, p. 155, paras. 71-72). It has also taken note of a for‑
                     mal undertaking in proceedings before the Court as to an existing state of
                     affairs (see Maritime Dispute (Peru v. Chile), Judgment, I.C.J. Reports
                     2014, p. 65, para. 178). As the Court says in the present Order,

                          “[t]he Court has no reason to believe that the written undertaking
                          dated 21 January 2014 will not be implemented by Australia. Once a
                          State has made such a commitment concerning its conduct, its good
                          faith in complying with that commitment is to be presumed.” (Order,
                          para. 44.)
                       21. It is implicit in paragraph 44 of the Order and in the approach
                     taken by the Court in Belgium v. Senegal that a formal undertaking of the
                     kind given by Australia in proceedings before the Court is legally binding
                     as a matter of international law and creates legal obligations for the State
                     that makes it.

                     60

8 CIJ1061.indb 248                                                                                25/03/15 08:46

                     204 	        seizure and detention (diss. op. greenwood)

                        22. Should the Court, therefore, have followed the same course that it
                     adopted in Belgium v. Senegal and treated the Australian undertaking (as
                     clarified in the hearings before the Court) as sufficient to demonstrate that
                     there was no real and imminent risk of irreparable harm ? To answer that
                     question, it is necessary to look both at the right, as defined by the Court,
                     and the risks identified by Timor‑Leste and the Court.
                        23. The principal claim of Timor‑Leste, which the Court considered
                     had been established as plausible and thus deserving, if the other require‑
                     ments were satisfied, of protection by means of provisional measures was
                     “[the] right to communicate with its counsel and lawyers in a confidential
                     manner with regard to issues forming the subject-matter of pending arbi‑
                     tral proceedings and future negotiations between the Parties” (Order,
                     para. 27 ; see also para. 28). The risk of irreparable harm to this right
                     identified by Timor-Leste was the risk that the material seized from its
                     lawyer’s office, or information derived therefrom, would find its way into
                     the hands of those responsible on the part of Australia for the conduct of
                     the arbitration or any future negotiations. Thus, counsel for Timor-Leste
                     told the Court

                            “The essence of what we seek is to ensure that the illegally seized
                          materials should not be made available to any person having any role
                          in connection with Australian diplomatic or commercial relations
                          with Timor-Leste over the Timor Sea and its resources. This includes,
                          but is not limited to, any person having any role in relation to the
                          Arbitration.” (CR 2014/1, pp. 33‑34 (Sir Michael Wood).)

                        24. It was that risk of a detrimental effect on Timor-Leste’s position in
                     the arbitration and in any future negotiations which would arise if the
                     seized material was divulged to any person involved in the arbitration or
                     likely to be involved in any future negotiations on the Australian side
                     which was the decisive consideration for the Court (see Order, para. 42).

                       25. Yet that is precisely the risk which the Attorney-General’s under‑
                     taking, if complied with, would prevent. As clarified before the Court,
                     that undertaking is that :
                     (1) none of the seized material or any information derived therefrom has
                         so far been divulged to any person involved in the arbitration or the
                         Court proceedings or who may be likely to be involved in any future
                         Timor Sea negotiations ;

                     (2) none of the seized material or any information derived therefrom will
                         be divulged to any person involved in the arbitration or the Court
                         proceedings or who may be likely to be involved in any future Timor
                         Sea negotiations until after the Court has given its final judgment in
                         the case ;

                     61

8 CIJ1061.indb 250                                                                                25/03/15 08:46

                     205 	        seizure and detention (diss. op. greenwood)

                     (3) in the event that criminal proceedings are brought in Australia before
                         the Court has given its final judgment in this case, the Australian
                         court will be asked to take special measures to ensure that none of
                         the seized material or information derived therefrom is disclosed in a
                         manner which might lead to it coming to the attention of any of the
                         persons involved in the arbitration or the Court proceedings or who
                         may be likely to be involved in any future Timor Sea negotiations
                         and, if the Australian court declines to take such measures, Australia
                         will not proceed further in the Australian courts until it has given this
                         Court the opportunity to rule on the question.

                        26. This undertaking is far more precise and detailed than that given in
                     Belgium v. Senegal. Since the Court has held that there is no reason to
                     believe that Australia will not comply with the commitment that it has
                     made to the Court, I cannot conclude that there is a real and imminent
                     risk that any of the information concerned will find its way into the hands
                     of anyone involved in the arbitration or the conduct of the current pro‑
                     ceedings or who is likely to be involved in any future negotiations between
                     the Parties over the Timor Sea. The Court reaches a different conclusion
                     on the basis that,
                          “once disclosed to any designated officials in the circumstances pro‑
                          vided 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” (Order,
                          para. 46).
                        27. I entirely understand and sympathize with the Court’s concern to
                     maintain the confidentiality of what seems certain to be sensitive material
                     capable of giving Australia a most unfair advantage in the ongoing arbi‑
                     tration proceedings and possibly in any future negotiations but it has to
                     be asked quite what the Court has in mind in the passage just quoted. The
                     possibility of disclosure coming about as a result of a prosecution in Aus‑
                     tralia has been covered by the supplementary undertaking given orally
                     through the Solicitor-General and quoted at paragraph 19, above. The
                     Court may have had in mind the possibility of a disclosure by an officer
                     of ASIO empowered to examine the material for national security rea‑
                     sons. Yet that concern is difficult to reconcile with what the Court says in
                     paragraph 44 of the Order about having no reason to doubt that Austra‑
                     lia will comply with the undertaking. A State can act only through its
                     officials and an officer of ASIO is, in accordance with the principle codi‑
                     fied in Article 4 of the ILC Articles on State Responsibility, an organ of
                     the Australian State. It is, therefore, a contradiction in terms to say that
                     the Court has confidence that Australia will comply in good faith with the
                     commitment it has made but that it doubts whether certain organs of the
                     Australian State will do so. Even if such an ASIO officer were acting in an

                     62

8 CIJ1061.indb 252                                                                                25/03/15 08:46

                     206 	        seizure and detention (diss. op. greenwood)

                     unauthorized manner, his or her conduct would still be the conduct of
                     Australia so long as he or she acted in their official capacity (ILC Articles
                     on State Responsibility, Article 7) and it is difficult to see how disclosure
                     by one official to another could be seen as anything else. I accept that that
                     leaves the possibility of an accidental disclosure but, given the nature of
                     the security concerns involved, such accidental disclosure seems unlikely
                     and no suggestion of such an eventuality was made by Timor-Leste.

                        28. For these reasons, I believe that the 21 January 2014 undertaking
                     from the Attorney‑General of Australia removes the risk that the mat
                     erial (or information derived therefrom) will be disclosed in circumstances
                     which would disadvantage Timor-Leste in relation to the arbitration pro‑
                     ceedings or potential negotiations regarding the Timor Sea. The Court,
                     however, has determined that, while the undertaking makes “a significant
                     contribution towards mitigating the imminent risk . . . [it] does not remove
                     this risk entirely” (Order, para. 47). On that basis, the Court has ordered
                     Australia to seal the seized material (ibid., para. 55 (2)) and ensure that its
                     content is not in any way used to the disadvantage of Timor-Leste (ibid.,
                     para. 55 (1)). This approach may reflect an understandable wish to err on
                     the side of caution. Unfortunately, I think it goes far beyond that. While
                     paragraph (1) of the dispositif can reasonably be regarded in that light,
                     paragraph (2) goes much further. By requiring that the seized material be
                     sealed until the final judgment of the Court, this measure deprives Aus‑
                     tralia of any opportunity (until the date of that judgment) to have its
                     intelligence officers inspect the material for the purpose of finding out
                     what, if anything, the former ASIS officer actually disclosed to
                     Timor‑Leste’s Australian lawyer and, in particular, whether that disclo‑
                     sure may put in danger other ASIS or ASIO officers. It also precludes
                     Australia from making any use of the material (even in a preliminary
                     way) in the investigation of what it claims may be a serious offence by an
                     Australian national. To my mind, it is clear that the right of Australia to
                     exercise its criminal jurisdiction and its right to protect the safety of its
                     officials must also be regarded as plausible. In deciding what provisional
                     measures to order, the Court should have regard to the plausible rights of
                     both parties in a case. In particular, it should be slow to adopt a measure
                     which precludes one party (here, Australia) from any exercise of its plau‑
                     sible rights in order to protect the rights of the other party (here, Timor-
                     Leste) against a risk which the Court itself has identified as small. Had
                     the Court simply accepted the undertaking given by Australia or had
                     stopped short at paragraph (1) of the dispositif, it would have respected
                     the plausible rights of both Parties. Instead, it has adopted a measure that
                     takes no account at all of the plausible rights of Australia.

                     63

8 CIJ1061.indb 254                                                                                25/03/15 08:46

                     207 	        seizure and detention (diss. op. greenwood)

                        29. Since one of the prerequisites for the indication of provisional mea‑
                     sures regarding the seized material is absent, I have therefore felt obliged
                     to vote against the measures ordered in paragraphs (1) and (2) of the
                     dispositif which relate to that material. Even had I considered that the
                     prerequisite of the existence of a real and imminent risk was satisfied, I
                     would still have voted against paragraph (2) of the dispositif for the rea‑
                     sons given in paragraph 28 of this opinion.
                        30. Paragraph (3) of the dispositif is a different matter. This paragraph
                     deals not with the use which might be made of the seized material or
                     information derived from that material but with the possibility of future
                     interference by Australia with Timor-Leste’s communications with its
                     legal advisers. In view of the seizure of papers which clearly related to
                     legal advice and preparation for the forthcoming arbitration from Timor-
                     Leste’s lawyer, it is entirely understandable that Timor‑Leste is concerned
                     that there might be future interference and it sought an assurance from
                     Australia that there would be no such interference. To my surprise, the
                     undertaking from the Attorney‑General makes no mention of this matter.
                     In the absence of any undertaking not to interfere with Timor-Leste’s
                     communications with its lawyers in the future, I accept that there is a real
                     and imminent risk of such interference which requires action on the part
                     of the Court. I have therefore voted in favour of paragraph (3).
                        31. In the course of the hearings, leading counsel for Timor-Leste
                     spoke eloquently of the need for “clear, firm and severe condemnation of
                     what Australia has done” (CR 2014/1, p. 30 (Sir Elihu Lauterpacht QC))
                     but I did not understand him to expect such a statement at the present
                     stage of the proceedings. Whether or not such condemnation is appropri‑
                     ate can be decided only if and when the Court rules on the merits of the
                     present case. The purpose of provisional measures is solely to protect
                     rights which may subsequently be adjudged to exist and to be applicable.
                     It is not to anticipate a judgment on the merits by the expression of con‑
                     demnation or approval of what either party has done. My votes in the
                     present phase should not, therefore, be taken as suggesting that I con‑
                     done what has happened.

                     (Signed) Christopher Greenwood.

                     64

8 CIJ1061.indb 256                                                                                25/03/15 08:46