The Corfu Channel Case

By Aarti Goyal, UILS, Chandigarh

Editor’s Note: The general principles of International law are among the sources of national and International Law, which have long been recognized and applied in disputes. The Corfu Channel case addressed the question of civil liability of Albania, which had placed mines within its sovereign waters and subsequently caused damage to two naval Destroyers of the United Kingdom’s navy.

The exclusive territorial control exercised by Albania within its water frontiers has a bearing on the burden of proof with respect to the country’s activity. The United Kingdom which was an unfair victim of the mines placed in the Corfu strait and the International Court of Justice found that Albania was responsible for loss of human life and the machinery suffered by the United Kingdom, even though the United Kingdom had violated the sovereignty of Albania’s territorial waters. Compensation was hence ordered.

INTRODUCTION

General principles of International Law are among the sources of national and international law which have long been recognized and applied in disputes between states. According to Restatement of the Law (Third), the Foreign Relations of the United States, “General principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate.” Article 38 (1)(c) of the Statute of the International Court of Justice authorizes the Court to apply the general principle of law recognized by civilized nations in addition to international conventions and custom, which are also the two main sources of international law. It makes National legal systems as a source of law for the creation of international law.  The general principles constitute both the backbone of the body of law governing international dealings and the potent cement that binds together the various and often disparate cogs and wheels of the normative framework of the community.

Corfu Channel case, addressed the question of Albanian civil liability for the mining of the Corfu Channel and subsequent damage to two British naval vessels that resulted from striking mines. In discussing whether the United Kingdom could establish the knowledge and responsibility of Albania for the laying of the mines, the Court’s opinion stated: the fact of this exclusive territorial control exercised by a State within its frontiers has a bearing upon the methods of proof available to establish the knowledge of that State as to such events. By reason of this exclusive control, the other State, the victim of a breach of international law, is often unable to furnish direct proof of facts giving rise to responsibility. Such a State should be allowed a more liberal recourse to inferences of fact and circumstantial evidence. This indirect evidence is admitted in all systems of law and its use is recognized by international decisions. It must be regarded as of special weight when it is based on a series of facts linked together and leading logically to a single conclusion.[i]

On 22 October 1946 in the Corfu Strait, two British destroyers struck mines in Albanian waters and suffered damage, including serious loss of life. On 22 May 1947, the Government of the United Kingdom filed an Application instituting proceedings against the Government of the People’s Republic of Albania seeking a decision to the effect that the Albanian Government was internationally responsible for the consequences of the incident and must make reparation or pay compensation. Albania, for its part, had submitted a counter-claim against the United Kingdom for having violated Albanian territorial waters. On 9 April 1949, the Court found that Albania was responsible for the explosions and for the resulting damage and loss of human life suffered by the United Kingdom. The Court also found that the later minesweeping by the United Kingdom had violated Albanian sovereignty. On 19 December 1949, the Court ordered Albania to pay the United Kingdom compensation.

GENERAL PRINCIPLES: MEANING AND CONCEPT

The General Principals of Law recognized by civilized nations form part of the law to be applied by the permanent forum of family nations- the International Court of Justice. General principles of law recognized by civilized nations – or more appropriate: the community of nations – are a manifestation of international law. They are included in Article 38 Para 1 of the Statute of the International Court of Justice and have been classified as a primary source. Sir Hersch Lauterpacht noted this provision was first introduced into the Statute of the PCIJ by the Commission of Jurists charged with drawing it up in order to avoid the problem of ‘non-liquet’ – the argument that a court could not decide a matter because there was no law on the subject. If there is no treaty relevant to the dispute, or if there is no rule of customary international law that can be applied, the court is directed to apply general principles of law.[ii]

The general principles of law recognized by civilized nations comprise the third category of rules which the International Court of Justice must apply in accordance with Article 38 of the Statute of International Court of Justice. The phrase ‘general principals of law recognized by civilized nations’ means principles so general as to apply within all systems of law that have achieved a comparable state of development.[iii] The statute of the International Court of Justice authorizes the Court to apply the general principles of law recognized by civilized nations in addition to international conventions and customs, which are the two main sources of International Law. Professor Gutteridge is of the view that the object of the invocation of the general principles is with a view to providing the judges on the one hand, with a guide to the exercise of his choice of a new principle and, on the other hand, to prevent him from blindly following the teaching of the jurists with which he is most familiar without first carefully weighing the merits and considering whether a principle of private law does in fact satisfy the demands of justice.

The Special Arbitral Tribunal between Germany and Portugal also applied the general principles of law in the Maziua and Naulilla Cases where the arbitrators observed that in the absence of rules on International Law applicable to the facts in dispute, they were of opinion that it was their duty to fill the gap by applying principles of equity fully taking into account the spirit of International Law, which is applied by way of analogy and its evolution.[iv] Oppenheim states that, “the intention is to authorize the court to apply the general principles of municipal jurisprudence, in particular of private law, in so far as they are applicable to relations of state”.[v]

In thus opening the way for the operation as international law of general principles of municipal jurisprudence, it must be noted that such a principles are in the municipal sphere applied against a background of national laws and procedures. Unless there is some sufficient counterpart to them in the international sphere, or sufficient allowance is made for them in abstracting the principle from various municipal rules, the operation of the principle as source of particular rule of international law will be distorted.

At present, in the world community, two distinct classes of general principles may be relied upon. First, there are general principles of international law, namely those principles which can be inferred or extracted by way of induction and generalization from conventional and customary rules of international law. Some of these principles have to be restated by States in international instruments designed to set out the fundamental standards of behavior that should govern the relations among members of the international community.

Secondly, there are principles that are peculiar to a particular branch of international law. These Principles are general legal standards overarching the whole body of law governing a specific area. Although generalized principles or concepts that may be termed community value-judgments inform and pervade the political and therefore the legal orders in the broadest sense, they do not themselves constitute as such binding legal norms. This can only happen if they have been accepted as legal norms by the international community through the mechanisms and techniques of international law creation.[vi]General principles of law as source of international law enables rules of law to exist which can fill gaps or weakness in the law which might otherwise be left by the operation of custom and treaty, and provide a background of legal principles in the light of which customs and treaties have to be applied and as such it may operate to modify their application. General principles of law, however, do not have just a supplementary role, but may give rise to rules of independent legal force.[vii]

CORFU CHANNEL CASE

The Corfu Channel case was the first contentious case heard by the International Court of Justice, the supreme arbitration organ of the United Nations and one of the principal sources of authoritative rulings on international law.

FACTS OF THE CASE:

On May 15th 1946 the British warships passed through the Channel without the approval of the Albanian government and were shot at. Later, on October 22nd, 1946, a squadron of British warships (two cruisers and two destroyers), left the port of Corfu and proceeded northward through a channel previously swept for mines in the North Corfu Strait. Both destroyers were struck by a mine and were heavily damaged. This incident resulted also in many deaths.

The two ships were mined in Albanian territorial waters in a previously swept and check-swept channel. After the explosions of October 22nd, the United Kingdom Government sent a note to the Albanian Government, in which it announced its intention to sweep the Corfu Channel shortly.  The Albanian reply, which was received in London on October 31st, stated that the Albanian Government would not give its consent to this unless the operation in question took place outside Albanian territorial waters.  Meanwhile, at the United Kingdom Government’s request, the International Central Mine Clearance Board decided, in a resolution of November 1st, 1946, that there should be a further sweep of the Channel, subject to Albania’s consent.

The United Kingdom Government has informed the Albanian Government, in communication of November 10th, that the proposed sweep would take place on November 12th, the Albanian Government replied on the 11th, protesting against this ‘unilateral decision of His Majesty’s Government’.  It said it did not consider it inconvenient that the British fleet should undertake the sweeping of the channel of navigation, but added that, before sweeping was carried out, it considered it indispensable to decide what area of the sea should be deemed to constitute this channel, and proposed the establishment of a Mixed Commission for the purpose.  It ended by saying that any sweeping undertaken without the consent of the Albanian Government outside the channel thus constituted, i.e., inside Albanian territorial waters where foreign warships have no reason to sail, could only be considered as a deliberate violation of Albanian territory and sovereignty.

After this exchange of notes, ‘Operation Retail’ took place on November 12th and 13th. One fact of particular importance is that the North Corfu Channel constitutes a frontier between Albania and Greece, that a part of it is wholly within the territorial waters of these States, and that the Strait is of special importance to Greece by reason of the traffic to and from the port of Corfu.

ISSUES:

The British government claimed the minefield which caused the explosions was laid between May 15th, 1946, and October 22nd, 1946, by or with the approval or knowledge of the Albanian Government. Thus Albania was responsible for the explosions and loss of life and had to compensate the UK government. In addition to the passage of the United Kingdom warships on October 22nd, 1946, the second question in the Special Agreement relates to the acts of the Royal Navy in Albanian waters on November 12th and 13th, 1946 when the British government carried out a minesweeping operation called ‘Operation Retail’ without the consent of Albania.

The UK held the opinion the passage on October 22nd, 1946 was innocent and that according to rules of international law it had the right to innocent passage through the North Corfu Channel as it is considered part of international highways and does not need a previous approval of the territorial state. The Albanian Government does not dispute that the North Corfu Channel is a strait in the geographical sense; but it denies that this Channel belongs to the class of international highways through which a right of passage exists, on the grounds that it is only of secondary importance and not even a necessary route between two parts of the high seas, and that it is used almost exclusively for local traffic to and from the ports of Corfu. Thus a previous approval of the territorial state is necessary.

1) Should the North Corfu Channel as it is considered part of international highways?

2) Is Albania responsible under international law for the explosions which occurred on the 22nd October 1946 in Albanian waters and for the damage and loss of human life which resulted from them and is there any duty to pay compensation?

ANALYSIS:

The court analyzed the geographical situation of the channel connecting two parts of the high seas and was in fact frequently being used for international navigation. Taking into account these various considerations, the Court concluded that the North Corfu Channel should be considered as belonging to the class of international highways through which an innocent passage does not need special approval and cannot be prohibited by a coastal State in time of peace. The UK government claimed that on October 22nd, 1946, Albania neither notified the existence of the minefield nor warned the British warships of the danger they were approaching.

According to the principle of state responsibility, they should have done all necessary steps immediately to warn ships near the danger zone, more especially those that were approaching that zone. In fact, nothing was attempted by the Albanian authorities to prevent the disaster. These grave omissions involve the international responsibility of Albania. But Albania’s obligation to notify shipping of the existence of mines in her waters depends on her having obtained knowledge of that fact in sufficient time before October 22nd; and the duty of the Albanian coastal authorities to warn the British ships depends on the time that elapsed between the moment that these ships were reported and the moment of the first explosion.

CONCLUSION OF THE COURT:

 The Court, therefore, reached the conclusion that Albania is responsible under international law for the explosions which occurred on October 22nd, 1946, in Albanian waters, and for the damage and loss of human life which resulted from them, and that there is a duty upon Albania to pay compensation to the United Kingdom.

In the second part of the Special Agreement, the following question is submitted to the Court:

Has the United Kingdom under international law violated the sovereignty of the Albanian People’s Republic by reason of the acts of the Royal Navy in Albanian waters on the 22nd October and on the 12th and 13th November 1946 and is there any duty to give satisfaction?

Albania was in fact in war with Greece which means that the coastal state was not in time of peace. The UK had not an innocent passage due to the way it was carried out. The court assessed the manner of UK warships after they had been shot on May 15th. Having thus examined the various contentions of the Albanian Government in so far as they appear to be relevant, the Court has arrived at the conclusion that the United Kingdom did not violate the sovereignty of Albania by reason of the acts of the British Navy in Albanian waters on October 22nd, 1946. The United Kingdom Government does not dispute that ‘Operation Retail’ was carried out against the clearly expressed wish of the Albanian Government.

It recognizes that the operation had not the consent of the international mine clearance organizations, that it could not be justified as the exercise of a right of innocent passage, and lastly that, in principle, international law does not allow a State to assemble a large number of warships in the territorial waters of another State and to carry out minesweeping in those waters.  The United Kingdom Government states that the operation was one of extreme urgency and that it considered itself entitled to carry it out without anybody’s consent. The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rising to most serious abuses and such as cannot, whatever be the present defects in international organization, The United Kingdom Agent, in his speech in reply, has further classified ‘Operation Retail’ among methods of self-protection or self-help.  The Court cannot accept this defense either find a place in international law.

The final conclusion of the court:

1) On the first question put by the Special Agreement of March 25th, 1948,

The court gives judgment that the People’s Republic of Albania is responsible under    international law for the explosions which occurred on October 22nd, 1946, in Albanian waters, and for the damage and loss of human life that resulted there from; and Reserves for further consideration the assessment of the amount of compensation and regulates the procedure on this subject.

2) On the second question put by the Special Agreement on the violation of state sovereignty, The court gives judgment that the United Kingdom did not violate the sovereignty of the     People’s Republic of Albania by reason of the acts of the British Navy in Albanian waters on October 22nd, 1946;  and unanimously, gave judgment that by reason of the acts of the British Navy in Albanian waters in the course of the Operation of November 12th and 13th, 1946, the United Kingdom violated the sovereignty of the People’s Republic of Albania, and that this declaration by the Court constitutes in itself appropriate satisfaction.

OBSERVATION OF GENERAL PRINCIPLES IN CASE

THE THEORY OF RESPONSIBILITY:

ILC DRAFT ARTICLES ON RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS, (Report of the 53rd Sess., ILC (2001), G.A.O.R. 56th Sess., Supp.10)

Part One: The Internationally Wrongful Act of a State

General Principles

Article 1: Every Internationally wrongful act of a State entails the International responsibility of that State.

It states the basic principle underlying the articles as a whole, which is that a breach of international law by a State entails its international responsibility…

The International Court of Justice has applied the principle in the Corfu Channel case…

(7) The articles deal only with the responsibility of States. Of course, as the International Court of Justice affirmed in the Reparation for Injuries case, the United Nations “is a subject of international law and capable of possessing international rights and duties…. It has the capacity to maintain its rights by bringing international claims” The Court has also drawn attention to the responsibility of the United Nations for the conduct of its organs or agents.  It may be that the notion of responsibility for wrongful conduct is a basis element in the possession of international legal personality.  Nonetheless, special considerations apply to the responsibility of other international legal persons, and these are not covered in the articles ……[viii]

Facts:

On 22nd October 1946, a squadron of British warships, the cruisers Mauritius and Leander and destroyers Saumarez and Volage, left the port of Corfu and proceeded northwards through a channel previously swept for mines in the North Corfu Strait. Outside the Bay of Saranda, Saumarez struck a mine and was heavily damaged. [ix]Whilst towing the damaged ship, Volage struck a mine and was much damaged. Following the incident, the United Kingdom carried out minesweeping operations on 12 and 13 November 1946 in the North Corfu Channel. Twenty–two more mines were found.

By the first part of the Special Agreement, the following question was submitted to the Court:

‘1) Is Albania responsible under International law for explosions which occurred on 22nd October 1946 in Albanian waters and for the damage and loss of human life which resulted from then and is there any duty to pay compensation’

Held:

In its Judgment, the Court declared on the first question, by 11 votes against 5, that Albania was responsible under international law for the explosions, which occurred in Albanian waters.

PRINCIPLE OF RES JUDICATA:

 The term Res Judicata means a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same parties. Black’s Law Dictionary defines Res Judicata as an issue that has been definitively settled by judicial decision.[x]

The judgment dated December 15, 1949, in the Corfu Channel Case; the Court accepted the plea of Res Judicata in emphatic terms. It observed:-

‘The Albanian government disputed the jurisdiction if the court with regard to the assessment of damages. The court may confine itself to stating that this jurisdiction was established by its judgment of April 9, 1949 that in accordance with the statute (Article 60), which, for the settlement of the present dispute, is binding upon the Albanian government that judgment is final and without appeal, and that therefore, the matter is res judicata.”[xi]

The matter regarding the jurisdiction was already decided by the Court in its judgment dated April 9, 1949. Therefore, the matter between the parties had already been settled between the parties. The objection to the jurisdiction in the case of compensation was therefore not accepted by the court as it applied the principle of res judicata.

CIRCUMSTANTIAL EVIDENCE:

In cases where direct evidence of a fact is not available, it is a general principle of law that proof may be administered by means of circumstantial evidence. In the Corfu Channel Case (Merits) (1949), before the International Court of Justice, Judge Azevedo said in his dissenting opinion: “A condemnation, even to the death penalty, may be 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. “It would be going too far for an international court to insist on direct and visual evidence and to refuse to admit, after reflection, a reasonable amount of human presumptions with a view to reaching that state of moral, human certainty with which, despite the risks of occasional errors, a court of justice must be content.”

This part of his opinion is in agreement with the majority decision, which, in admitting proof by inferences of fact (presumptions de fait) or circumstantial evidence, held that: “This “indirect evidence is admitted in all systems of law, and its use is recognized by international decisions. It must be regarded as of special weight when it is based on a series of facts linked together and leading logically to a single conclusion . . . The proof may be drawn from inferences of fact (presomptions de fait), provided that they leave no room for reasonable doubt.[xii]

ELEMENTARY CONSIDERATIONS OF HUMANITY

The obligations incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger to which the minefield exposed them. Such obligations are based, not on the Hague Convention of 1907, No. VIII, which is applicable in time of war, but on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States. [xiii]

Formatted on 3rd March 2019.

Footnotes

[i] Retrieved from : http://www.judicialmonitor.org/archive_0707/generalprinciples.html on 25 October 2013 at 10 p.m

[ii] Alina Kaezorowska (2002), Public International Law, Old Bailey Press, London, P-21

[iii] Gurdip Singh (2003), International Law, Raj Kamal Electric Press, Delhi, P-35

[iv] M.P Tandon (2004), International Law and Human Rights, Allahabad Law Agency, Faridabad, P- 17

[v] Supra 2, P-22

[vi] Malcom N. Shaw (2005), International Law, Brijbasi Art Press Ltd., New Delhi, P- 103

[vii] Oppenhium (2005), International Law, Pearson Education Ltd., Indian Branch, Patparganj, Delhi, P- 40

[viii]Harris David (2010), Cases and Materials on International Law, Sweet & Maxwell, Great Britain, P-423.

[ix]Kaczokonwska Alina, 150 Leading Cases Public International Law,Old Bailey Press, London,2002,page no.218.

[x] Retrieved from: http://www.trinewbies.com/Printable-articles/MidPak%20-%20Res%20Judicata.htm on 31 October 2013 at 6:15 p.m

[xi] Retrieved from: http://heinonline.org/HOL/LandingPage?handle=hein.journals/ajil44&div=38&id=&page= on 31 October 2013, at 7 p.m

[xii] Retrieved from http://translex.uni-koeln.de/touch/document.php?docid=101100 on 27 October 2013 at 3 p.m

[xiii] Retrieved from: http://www.worldcourts.com/icj/eng/decisions/1948.03.25_corfu.htm on 1st November 2013 at 10:35 a.m

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