![United Kingdom Of Great Britain And Northern Ireland V. People’s Republic Of Albania [Corfu Channel Case]](https://juscholars.com/wp-content/uploads/2024/11/Law8.jpg)
Facts of the case
Two destroyers and two cruisers (a squadron) of British warships departed the Corfu port, sailed through a channel in North Corfu Strait that had swept for mines previously, and proceeded northwards on 22 October 1946. The two destroyers were severely damaged due to their collision with the mine, which resulted in 42 sailors being injured and 44 losing their lives. A similar incident had already occurred in these waters on 15 May 1946, where two British cruisers were shot at because they were sailing through the channel without the permission of the Government of Albania. Later, these two ships were mined in check-swept and previously swept channels in the territorial water of Albania.
A note has been sent by the Government of the United Kingdom (UK) stating that it would be sweeping the Corfu Channel to the Government of Albania after the 22 October explosions. The Albanian Government replied, denying permission to operate in the territorial waters of Albania unless it is outside its territorial waters, which was received on 31 October in London.
On 1 November 1946, in a resolution, the International Central Mine Clearance Board pronounced that a further sweep of the channel should take place, subject to the approval of Albania, at the request of the UK Government. On 10 November, the UK Government communicated that 12 November would be the date for the proposed sweep, to which the Government of Albania replied on 11th that it was against the ‘unilateral decision of His Majesty’s Government.’ It suggested the establishment of a mixed commission to determine the area of the sea to set up this channel before carrying out this sweeping and stated that sweeping of the channel of navigation undertaken by the British fleet was not considered inconvenient by it.
It stated that any sweeping outside the channel, inside the territorial waters of Albania, where there is no reason for sailing foreign warships without the permission of the Government of Albania, would be regarded as an intentional violation of Albanian sovereignty and territory. On 12th and 13th November, ‘Operation Retail,’ soon after the exchange of these notes. Another important fact is that the North Corfu Channel borders Greece and Albania. It is entirely within the territorial waters of Greece and Albania, and Greece gives special importance to the strait because of the enormous traffic that passes through Corfu port.
Issues raised in the case
- Whether the preliminary objection of the Albanian Government is admissible in the ICJ?
- Is the Government of Albania accountable for the explosions that took place in the Albanian Seas on 22 October 1946, which resulted in damage to machinery as well as loss of human life?
- Whether the UK breached the sovereignty of Albania by sending its Navy into the Albanian seas first on the day of the explosions, that is, on 22 October 1946, and again on November 12th and 13th,1946, when conducting minesweeping operations, ‘Operation Retail’ without the Albanian Government’s consent?
- Is the Albanian Government liable to compensate the UK?
Rule of law
• ‘Article 40 of ICJ’[1]
• ‘Article 25 of the UN Charter’[2]
•‘Article 17 of UNCLOS III’[3]
•‘Article 19 of UNCLOS III’ [4]
•‘Article 87 of UNCLOS III’[5]
Analysis
ISSUE I
The first issue was regarding the admissibility of the Application and jurisdiction of ICJ. The Application for the present case was filed by the UK before the United Nations Security Council (UNSC) on 22 May 1947. It included several provisions of the UN Charter. One such provision included was Article 25 which provides that States on becoming members of the UN are bound to accept and implement the “decisions” of the UNSC. The Application, then on the recommendation of the UNSC, was submitted to the ICJ.
The same was questioned by the Albanian Government through a letter submitted to the Court on the ground that it was not in accordance with UNSC’s direction. This was because the UK referred the issue to the Court unilaterally, even though it did not have the right to do so. The same is also not justified by the UN Statute, Charter, or the general International Law. The state also argued that Article 25 of the Charter could not be used as it includes only “decisions.” However, the letter also stated that ‘despite this irregularity, the Government had fully accepted the UNSC’s recommendation.’ Therefore, the state filed a “preliminary objection” in the ICJ challenging the Application on the grounds of “inadmissibility.”
ICJ, for the present issue, observed that though from the above facts it can be understood the Application can be a ground for objection in accordance to Article 40 of the Statute of ICJ as UK put forth the case before the ICJ by an “application” and not a “special agreement” and thus relates to a procedural irregularity The same, however, cannot be accepted due to the letter of 2 July 1947 by the Government of Albania that was submitted to the Court. This letter answers both questions.
ICJ, therefore, held that the Government of Albania’s correspondence to it on 2 July 1947 constituted acceptance of its jurisdiction voluntarily. The letter mentioned that the “Albanian Government is prepared, notwithstanding the ‘irregularity’ in the action taken by the Government of the United Kingdom, to appear before the Court.” This clearly explains that by this indisputable and voluntary acceptance, the Government had waived its right to specify the objection that the Application was inadmissible. The letter also expressly mentioned “its acceptance of the Court’s jurisdiction to this case.” Additionally, it was decided that there were no formal conditions for the parties’ consent to exercise its jurisdiction and that, at that point, it was not permitted to declare a process irregular that was not barred by any of those texts.
The ICJ, therefore, discarded Albania’s primary objection.
ISSUE II
The second question was regarding Albania’s liability for the mine explosions that occurred on 22 October 1946. On the fateful day, two destroyers of the United Kingdom were severely damaged, forty two sailors were injured and forty four lost their lives. Therefore, it becomes necessary to determine the responsibility of Albania for the explosions. This can be understood from two series of facts in the case.
The first fact is related to Albania’s conduct before and after the accident. The mines were laid during a time when the country was vigilant about its territorial seas and required prior authorization before entering them, even if it meant using force. They also only contended against the ‘activity of the British Navy’ and not against ‘the laying of mines.’ From this, it can be understood that its Government was well aware of the existence of the mines in the channel. Thus, they violated International law by failing to alert shipping of the minefield and also did not conduct the necessary judicial investigation. Thus, from this fact, it can be understood that the Albanian Government intended to cause damage and, therefore, may have desired to keep the events surrounding the mine laying secret, which could explain their approach. The second set of information concerns the feasibility of monitoring mine laying from the shore. The channel is visible due to its high elevations and proximity to the shoreline (the closest mine is 500 m from the coastline). On investigation by the naval experts, it was observed that Coastguards stationed at Cape Kiephali, Denta Point, and St. George’s Monastery, equipped with binoculars, and may have detected mine-laying operations during normal weather circumstances. “Therefore, in the case of minelaying from the North towards the South, the minelayers would have been seen from Cape Kiephali, and if from South towards the North, they would have been seen from Cape Kiephali and St. George’s Monastery.” [6]
Therefore, from the above facts, it can be concluded that Albania had prior knowledge of the existence of the mines, as the mines could not be laid in the minefield without the knowledge of the state. The Court also held that it was her responsibility to notify and warn cruisers passing through the strait on 22 October of the dangers they were facing. Albania, however, failed to avert the disaster, resulting in serious consequences that fall under international responsibility.
Therefore, under International Law, Albania was held accountable for the mine explosions that happened in Albanian Waters on 22 October 1946, which resulted in damage to machinery as well as loss of human life.
ISSUE III
The next issue in the special agreement was regarding the liability of the UK for violating the sovereignty of Albania. “The Albanian Government contended that prior authorization for passage of ships contradicts the widely accepted principle that States during time of peace have the right to send their warships through straits that are used for international navigation between two parts of the high seas provided the passage is innocent.”[7] The Corfu Strait belongs to this category as it connects two parts of the high seas. This strait was significant because it served as a border between Albania and Greece, with a portion falling entirely inside their territories. Greece claimed a portion of the coast surrounding the strait, resulting in strained relations between the two states. Therefore, Albania argued that the UK would not have the ‘right to innocent passage’ because the acts of the UK constituted a political mission, and the methods they employed supported their intention to intimidate. However, the ICJ stated that the argument raised by Albania would be acceptable only in the cases of issuing regulations relating to passage; this does not include preventing this passage or putting a special authorization requirement in place. “The Court, therefore, held the passage to be innocent both in its principle, since it was designed to affirm a right which had been unjustly denied, and in its methods of execution, which were not unreasonable in view of the firing from the Albanian battery on 15 May.”[8]
The other part of the issue dealt with ‘Operation Retail’ conducted by the UK on the 12th and 13th of November. The Court explained that these operations were undertaken against the Albanian Government’s wishes and without the authorization of international mine clearance organizations. The Court also held that this act of the United Kingdom Navy cannot be justified as an act done in the exercise of the right of innocent passage. The Court discarded the defense of the UK that the operations were a method of self-help or self-protection and were done only to procure the mines as soon as possible to avoid any further damage in accordance with the ‘theory of intervention.’ “It explained that this can only regard the alleged right of intervention as the manifestation of a policy of force which cannot find a place in international law.”[9] The notion of self-help, hence, was rejected by the Court.
Therefore, ICJ held Albania’s sovereignty was not violated by 22 October 1946, as it had the right to innocent passage. However, the Court held that the minesweeping operation, Operation Retail, which was conducted on November 12th and 13th, violated the sovereignty of the Albanian Government and explained that ‘respect for territorial sovereignty is an essential foundation of international relations.’
ISSUE IV
ICJ noted that because of the significant harm that mine explosions in Albanian seas caused to British machinery and individuals, Albania is obligated to compensate the United Kingdom as it caused direct harm to the UK. Therefore, the UK is entitled to compensation from Albania for breaches of international law. As a result, the Court mandated that Albania reimburse the UK for the damages it sustained in the amount of £844,000.
Reverse judgement
The central aspect of this issue involves the actions of Albania while laying mines in the Corfu Channel and its legality, as it damaged the ships of Britain and led to a loss of life. On 9 April 1949, the ICJ pronounced its judgment, holding that Albania was indeed responsible for breaching the international obligations that lay upon the country. As the mines were not removed by, the country that were laid in the Corfu Channel and did not even give a warning regarding the same, many considered this not just a violation of its obligation but also a lack of humanitarianism. Thus, The ICJ ordered the country to monetarily atone to the UK for all the loss it incurred and damages faced. Though on the surface, the judgment holding Albania liable for the damages caused seems fair, there were a few counterarguments and criticisms brought upon by various parties. There were also various dissenting opinions raised by the judges and other parties to the case, though the case was ultimately held in favor of the United Kingdom.
One major counterargument was raised relating to the violation of Albania’s sovereignty. This was because Albania was never directly implicated in the mining occurrence. Disregarding this, the ICJ ruled in favor of the UK and held Albania liable for both the existence of the mines in its territorial waters and the lack of warning regarding the same. That being said, in situations where direct evidence is unavailable, circumstantial evidence can be considered; this is the general principle of law. In this case, before the ICJ, one judge stated his dissenting opinion: “A condemnation, even to the death penalty, maybe well-founded on indirect evidence and may nevertheless have the same value as a judgment by a court which has founded its conviction on the evidence of witnesses.”[10]
This portion of his view is in consonance with the ruling of the majority, which stated that: “this type of indirect evidence can be admitted before all courts, but it must be regarded with special weight; all the evidence should lead to a single logical conclusion, and there should be no room for reasonable doubt.”[11]
Another argument can be that this type of precedent can undermine the sovereignty of most nations over their territorial waters. On one of the questions put forth by the Special Agreement with respect to the question of the violation of the sovereignty of Albania, the passage of the UK ships was said to not be a violation of the said sovereignty of the country by a majority of fourteen votes to two votes. The Court also unanimously held that the minesweeping operation that was later done was a violation. However, there were opposing opinions concerning the actual passage of the UK ships. Ultimately, it was held that the sovereignty was not violated in the given case.
This case has set a precedent concerning the responsibilities of states regarding maritime incidents in their territorial waters. Some critics argue that this precedent could lead to increased liability for coastal states, which may discourage them from allowing freedom of navigation or cooperation in maritime matters.
Some experts argued that the geopolitical context should have been considered before a fair judgment could have been given. The judgment was given against Albania due to the influence of political considerations rather than solely on a legal context. As can be observed, the ICJ applied a stricter ruling standard to Albania in comparison to a few other cases that came about at a later stage. This unequal treatment could raise a contention against the fairness and consistency in international law.
Despite this, the view expressed by Professor Oliver J. Lissitsyn shows a different aspect, as the judges of different nationalities of the communist states did not always give opinions that favored their states. For example, “The Polish and Yugoslav concurred in the view that Albanian sovereignty had not been violated by the peaceful passage, differing in opinion from the Soviet and Brazilian judges. The Polish and Yugoslav judges concurred in assessing the amount of compensation, from which the Soviet judge dissented.”[12]
Overall, the significant counterarguments include a narrow interpretation of international law that did not consider other relevant legal standpoints, leading to an outcome that was inconsistent with broader principles of state responsibility or maritime law. Aside from that, few considered that the judgment given by ICJ had limited means of enforcement as Albania was not compliant. Additionally, the political context of the situation was not considered. Though it has criticism regarding the violation of sovereignty, enforcement, consistency and political force. Even after considering all these points this case is still an essential milestone in the aspect of international law.
Conclusion
The Corfu Channel Case has a significant influence on the Court’s jurisprudence. This case’s impact is evident in several areas, including fundamental procedural issues and substantive challenges in maritime law. This case has been called a turning point in the development of the law of the sea. The Corfu Channel hinted at a shift in this regime, even if the “1930 Hague Conference on International Law” failed to reach an agreement on whether warships had the right to travel over territorial seas innocuously. The case also affected how the ICJ conducted itself in subsequent instances.
The ‘Rule of Innocent Passage through Straits’ was also acknowledged by the Court in this case. It states that since the primary function of an international strait is to facilitate navigation from one area of the high seas to another, the right of passage for foreign ships through them, as granted by customary international law, cannot be suspended for security reasons. Therefore, The Corfu Channel Case paved the way for several other cases that came before the ICJ, like the case of “Nicaragua v. United States.”[13] in 1986, the Oil Platforms case in 2003, and Armed Activities on the Territory of the Congo in 2005, among others.
[1] This article states that cases can be brought before ICJ through a written request or special agreement sent to the registrar.
[2] This article states that the members of the UN agree to abide by the decisions made by the Security Council in line with the current charter. UN.
[3] This article discusses the principle of the right to innocent passage in the Territorial Sea. ‘Innocent Passage’ pertains to an aircraft’s or ship’s right to enter and travel through the territory of another country as long it does not threaten the country’s order, peace, and security.
[4] This article defines the passage as innocent as it does not threaten the coastal country’s order, peace, and security.
[5] This article discusses the principle of freedom of maritime communication, which ensures that international waterways are free from any hazards. If any harm is caused to the ships of other states passing through the area controlled by the coastal state, then the state is responsible for such damage.
[6] Bancroft, H. F., & Stein, E. (1949). The Corfu Channel Case: Judgment on the Preliminary Objection. Stanford Law Review, 1(4), 646–657.
[7] Rosenthal, A. M. (26 March 1947). “Soviet Veto Blocks Rebuke of Albania”. New York Times. pp. 1, 6.
[8] Leggett, Eric, The Corfu Incident, London: Seeley, (1974).
[9] Ibid.
[10] Waibel, M. (2010b). Corfu Channel case. ResearchGate. https://www.researchgate.net/publication/228184221_Corfu_Channel_Case
[11] Ibid.
[12] Reuters (1947) ‘The Corfu Mining: Fact-Finding Committee Disagrees’, Manchester Guardian.
[13]Nicaragua v. United States, (1986). ICJ 14.
Author: Maramganty Manasvi, BA LLB student, Institution: Symbiosis Law School, Hyderabad
