UK v. Albania (The Corfu Channel Case (ICJ, 1949)) - An analysis

SYNOPSIS:

The following article discusses the historical Corfu Channel Case.The Corfu Channel Case flagged the beginning of a rich and diverse role played by the International Court of Justice (ICJ) in the judicial settlement of international disputes. The significance of this case is that it challenged the three Judgements given by the ICJ in the past.

The Corfu Channel was the first public international law case that was put forward in the International Court of Justice that happened between 1947 and 1949 – about 2 years after the ICJ was established.

What caused the dispute between the United Kingdom and the People’s Republic of Albania?

INTRODUCTION:

It was on May 15 1946 that two British warships crossed the Corfu Channel. They had come under fire from the Albanian fortifications. They could not strike any vessel. Albania had not accepted the UK’s demand for an apology. It was stated that the UK had violated Albanian territorial waters, and asserted that passage through the Corfu Channel required Albanian permission.The UK had then protested that innocent passage through straits is a right recognised by international law; the Albanian Government had replied that foreign warships and merchant vessels had no right to pass through Albanian territorial waters without prior authorisation. The UK then had warned them that they will fire back at them in the future.

The UK on October 22, 1946, entered the Corfu Channel. The ships were ordered to return fires if they were attacked. The ships then crossed the Corfu Channel. There was an instruction further to the UK crew that they were supposed to test Albania’s reaction to their alleged rights of innocent passage.

The British cruisers and destroyers came from the South, and entered the North Corfu Strait. The Channel that they were following, which was in Albanian waters, was regarded as safe: as it had been swept in 1944 and check swept in 1945.

However, that was not the case. Two of the British ships collided with the mines in the Channel. This caused the ships to go through server damage. Approximately forty-five British officers and sailors lost their lives and forty-two others were wounded as a result of the collision.Shore batteries in the vicinity were observed by the ships but neither took an action. The Albanian ship was then sent which waved a white flag.

WHAT HAPPENED NEXT?

The United Kingdom Government had then sent a Note to Tirana announcing its intention to sweep the Corfu Channel shortly. The reply to this was that this consent will not be given unless the operation in question took place outside Albanian territorial waters and that any sweep undertaken in those waters would be a violation of Albania's sovereignty.

On November 13, 1946, the British navy carried out a unilateral mine-sweeping and evidence-gathering operation within Albanian territorial waters. While the UK had announced these operations in advance, Albania had not authorized them and protested strongly. Twenty-two moored mines were cut; they were mines of the German GY type.

CONSEQUENCE OF THE DISPUTE

This dispute gave rise to three Judgments by the Court. It arose out of the explosions of mines by which some British warships suffered damage while passing through the Corfu Channel in 1946, in a part of the Albanian waters which had been previously swept. The ships were severely damaged and members of the crew were killed. The United Kingdom seised the Court of the dispute by an Application filed on 22 May 1947 and accused Albania of having laid or allowed a third State to lay the mines after mine-clearing operations had been carried out by the Allied naval authorities. The case had previously been brought before the United Nations and, in consequence of a recommendation by the Security Council, had been referred to the Court.

In a first Judgment, rendered on 25 March 1948, the Court dealt with the question of its jurisdiction and the admissibility of the Application, which Albania had raised. The Court found, inter alia, that a communication dated 2 July 1947, addressed to it by the Government of Albania, constituted a voluntary acceptance of its jurisdiction. It recalled on that occasion that the consent of the parties to the exercise of its jurisdiction was not subject to any particular conditions of form and stated that, at that juncture, it could not hold to be irregular a proceeding not precluded by any provision in those texts.

A second Judgment, rendered on 9 April 1949, related to the merits of the dispute. The Court found that Albania was responsible under international law for the explosions that had taken place in Albanian waters and for the damage and loss of life which had ensued. It did not accept the view that Albania had itself laid the mines or the purported connivance of Albania with a mine-laying operation carried out by the Yugoslav Navy at the request of Albania. On the other hand, it held that the mines could not have been laid without the knowledge of the Albanian Government. On that occasion, it indicated in particular that the exclusive control exercised by a State within its frontiers might make it impossible to furnish direct proof of facts incurring its international responsibility. The State which is the victim must, in that case, be allowed a more liberal recourse to inferences of fact and circumstantial evidence; such indirect evidence must be regarded as of especial weight when based on a series of facts, linked together and leading logically to a single conclusion. Albania, for its part, had submitted a counter-claim against the United Kingdom. It accused the latter of having violated Albanian sovereignty by sending warships into Albanian territorial waters and of carrying out minesweeping operations in Albanian waters after the explosions. The Court did not accept the first of these complaints but found that the United Kingdom had exercised the right of innocent passage through international straits. On the other hand, it found that the minesweeping had violated Albanian sovereignty, because it had been carried out against the will of the Albanian Government. In particular, it did not accept the notion of “self-help” asserted by the United Kingdom to justify its intervention.

In a third Judgment, rendered on 15 December 1949, the Court assessed the amount of reparation owed to the United Kingdom and ordered Albania to pay £844,000.

The United Kingdom also argued that, whoever might be the authors of the mine laying, it could not have been affected without Albania's knowledge. True, the mere fact that mines were laid in Albanian waters neither involves prima facie responsibility nor does it shift the burden of proof. On the other hand, the exclusive control exercised by a State within its frontiers may make it impossible to furnish direct proof of facts which would involve its responsibility in case of a violation of international law. The State which is the victim must, in that ease, be allowed a more liberal recourse to inferences of fact and circumstantial evidence; such indirect evidence must be regarded as of especial weight when based on a series of facts, linked together and leading logically to a single conclusion.

CONCLUSION

As regards the operation on November 12th/13th, it was executed contrary to the clearly expressed wish of the Albanian Government; it did not have the consent of the international mine clearance organizations; it could not be justified as the exercise of the right of innocent passage. The United Kingdom has stated that its object was to secure the mines as quickly as possible for fear lest they should be taken away by the authors of the mine laying or by the Albanian authorities: this was presented either as a new and special application of the theory of intervention, by means of which the intervening State was acting to facilitate the task of the international tribunal, or as a method of self-protection or self-help. The Court cannot accept these lines of defence. It can only regard the alleged right of intervention as the manifestation of a policy of force which cannot find a place in international law. As regards the notion of self-help, the Court is also unable to accept it: between independent States the respect for territorial sovereignty is an essential foundation for international relations. Certainly, the Court recognises the Albanian Government's complete failure to carry out its duties after the explosions and the dilatory nature of its diplomatic Notes as extenuating circumstances for the action of the United Kingdom. But, to ensure respect for international law, of which it is the organ, the Court must declare that the action of the British Navy constituted a violation of Albanian sovereignty. This declaration is in accordance with the request made by Albania through her counsel and is in itself appropriate satisfaction.

To the Judgment of the Court there are attached one declaration and the dissenting opinions of fudges Alvarez, Winiarski, Zoricic, Badawi Pasha, Krylov and Azevedo, and also that of Dr. Ecer, Judge ad hoc.