Corfu Channel (United Kingdom v. Albania)[1] is a 1949 judgment (second judgment, first judgment was pronounced on 25 March 1948) of International Court of Justice (ICJ) in a dispute that arose between the United Kingdom (UK) and Albania. It is one of the most contentious and influential case in the international law, which has special relevance to both Law of the Sea as well as international environmental law, especially in the context of right of innocent passage.
The territorial sea of a Coastal State extends up to 12 Nautical Miles and the state enjoys sovereignty over such waters. However, under Law of the Sea, other States have a right of innocent passage through such waters. The Right of innocent passage was codified by the adoption of 1982 United Nations Convention on the Law of the sea (UNCLOS). However, the right itself is not a new evolution; it existed even before adoption of the UNCLOS.
Article 17 of the UNCLOS provide that both Coastal and landlocked State has right of innocent passage through the territorial sea. Article 19 of the UNCLOS clearly defines which passage is considered as ‘innocent’. The passage must not be prejudicial to the peace, good order or security of the Coastal State. However, the State carrying on innocent passage must comply with the laws and regulations of the Coastal State. Coastal State has right to regulate the actions in its territorial water.
This case was decided before the adoption of UNCLOS in 1982. However, it did recognize the right of innocent passage. This case involves various other legal issues pertaining to the sovereignty of the States in its territorial waters, rights of a state to lay down mines or allow such activities in its territorial waters, the duty to notify existence of such dangers to the states passing through such waters to prevent any material damage, State responsibilities in such cases and issues related to damages and compensation.
Various important doctrines were laid down in this case relating to the ‘due diligence’ and obligations of States not to allow ‘knowingly’ their territory to be used for acts which may interfere with the legitimate rights of the other States (such as right of innocent passage). Further, the ICJ tried to create a balance between the sovereignty of the Coastal State on its territorial water and the right of other states of the innocent passage.
Corfu channel is a strait between Albania and a Greek Island Corfu. Two British ships (Saumarez and Volage) sailing in the Corfu channel, on 22 October 1946 struck the mines laid in the Channel which led to the death of 45 British sailors and 42 others were injured. Before this incident, on 15th May 1946, an Albanian battery had fired in the direction of the British cruisers. After the incident, the UK Government undertook the sweeping operation of the mines in the territorial waters of Albania on 12th and 13th November, 1946.
Finally, the matter was submitted to ICJ for the decision. UK claimed its right of innocent passage in the Corfu Strait and protested against the actions of Albania that its actions are hindering with the rights of UK, which is a recognised right under international law.
On the other hand, Albania claimed that UK requires authorization from Albania to sail in its territorial waters. Further, Albania also argued that the UK has violated the Albania’s sovereignty by carrying on sweeping of mines in its territorial waters without its permission or authorization of the mine clearance organization.[2]
Following issues were before ICJ for decision:
Albania argued that it has not violated international law as it did not have knowledge of the presence of mines in its territorial waters. Further, it argued that the foreign warships and merchant vessels had no right to pass through Albanian waters without authorization.
It denied that the passage on 22 October was innocent. It argued that the passage of UK in its water was a political mission and that the methods employed – the number of ships, formation, armament, manoeuvres, etc.- showed an intention to intimidate. Therefore, UK has violated the sovereignty of the Albania by passing through its territorial waters without authorization.[6] Further, carrying on sweeping operations of mines in the territorial waters of Albania against its wishes and without any authorization of mine clearance organization is also the violation of sovereignty of Albania.[7]
UK argued that it has right to innocent passage without authorization in the Albanian waters. This right is recognised by the international law. Further, it argues that the mines cannot be laid down in the territorial waters without the knowledge of Albania, whoever is the author of mines.[8] UK further claimed that the mines have been laid down by the two Yugoslav ships, with the connivance of Albania.[9]
Albania had a duty to notify and warn the ships of the existing danger.[10] This was the duty of Albania as it of course knew about the mines and therefore the probable danger. UK claimed that Albania shall be held responsible for its actions.
UK tried to justify its sweeping actions by taking the defence that the act was necessary for self-protection and evidence gathering.[11]
The Court held that Albania is responsible for the explosion and damage that occurred to UK ships and its people. (By eleven votes to five)
Further the Court ordered that the compensation must be paid by Albania. However, the doubt arose as to whether the Court could not only decide on the principle of compensation but also assess the amount? This matter was decided by the Court in its 15 December (1949) Judgment. The Court ordered 843,947 Pounds compensation to UK to be paid by Albania.[12] (By ten votes to six)
The Court further held that, by carrying on the mine sweeping activities by UK in the territorial waters of Albania cannot be justified as the exercise of right of innocent passage. Also, it did not have the consent of the international mine clearance organisations.[13] (By fourteen votes to two)
The mines which caused explosion was recently laid as the channel was previously swept and checks swept and could be regarded as safe for navigation. Then the Court delved into the legal basis of the responsibility of Albania for the explosion because the mere presence of mines, neither proves prima facie responsibility of Albania and nor shifts the burden of proof. The exclusive control exercised by the state within its frontiers makes it impossible to furnish direct proof of facts which would involve in case of violation of international law. So, circumstantial and indirect evidence based on series of fact, which linked together and leading logically to a single conclusion is to be provided by UK.
Two corroborative series of facts were found to indicate towards the responsibility of Albania. Firstly, the mines were laid during the period when Albania has been keeping stern watch over the activities on its territorial waters. Secondly, geographically the channel could be easily watched and the mine laying operations must have been watched by the coastguards. Therefore, it was proved that the existence of mine must have been in the knowledge of Albania.
In such scenario, Albania was under a duty to inform the shipping about the danger from the mines. However, Albania failed to fulfil its duty and no attempt was made by Albania to prevent this disaster.
The Court held that the passage of UK was innocent, both in its principle and execution. Therefore, the Court upheld the right of innocent passage of UK in the Corfu strait.
The Court upheld that, between the states the respect for territorial sovereignty is an essential foundation of international relations. The Court rejected the ‘self help’ argument of UK to justify its mine sweeping operation in territorial waters of Albania, as it acted contrary to the express wish of Albania and had no authorization from mine clearance organisation. Therefore, UK was held to violate the sovereignty of Albania. The Court also condemned the intervention ‘whether direct or indirect’ even on the ground of ‘self help’.
In 1949 judgment, the Court awarded UK 843,947 Pounds as compensation for material damage to ships, payable by Albania.
The Corfu Channel case has a great contribution in evolution of various significant international law principles, which is now so much ingrained in almost every field of international law. This case concretised the principle of right of innocent passage, even before adoption of UNCLOS in 1982. It further acknowledged the principles such as the principle of due diligence and state responsibility, rules pertaining to circumstantial evidence in international adjudication and balancing navigational rights and coastal states sovereignty.
One of the most significant contribution is the acknowledgement of the positive duty of States to prevent harm to other states due to the activities being carried out in own State. This is the principle of ‘trans-boundary harm.’ This principle plays a vital role in the International Environmental law.
The Court held Albania responsible for the harm caused to UK due the mines laid in its territory and its failure to prevent that harm. Albania breached its duty to notify the probable danger to UK. Albania should not have knowingly allowed the use of its territory for the acts which were in contravention to the navigational freedom (right of innocent passage) of other States.
This decision led to the strengthening of ‘due diligence’ principle, which is now a significant part of various field of international law such as environmental law, counter-terrorism and cyber operations, etc. The States must exercise ‘due diligence’ to prevent trans-boundary harm.
However, the majority opinion on the point of the responsibility of Albania was dissented by five Judges (Judge Klaestad, Judge Badawi Pasha, Judge Krylov, Judge Azevedo, Judge Alvarez). The main criticism was based on the fact that the Court gave too much importance to the circumstantial evidence (indirect evidence). No direct evidence was actually there to prove that Albania has actual knowledge of the mines in its territorial waters. This knowledge must have been proved by clear and convincing evidence. Further, the dissent was also based on the fact that Albania lacked capacity to carry on surveillance.
The question of due diligence comes with the knowledge. It Albania did not had knowledge, the obligation of ‘due diligence’ cannot be attributed to Albania.
On this point, the dissenting opinion seems more logical than the majority opinion, as basing the decision merely on some discrete facts, and stretching the circumstantial evidence too far is not right, particularly where the other factors such as capacity, political situation and poor infrastructure of a Nation do not make such surveillance possible.
The Court’s reliance on circumstantial evidence has been praised. Where provision of direct evidence does not seems to be possible, the Courts may rely on indirect evidence, such as those ‘series of facts’ which form a logical and a complete chain, leaving no room for reasonable doubt.
However, the heavy reliance on circumstantial evidence to hold Albania responsible and ignorance of other factors such Albania’s capacity to monitor, its ongoing political situation, etc, was criticised.
But, no doubt, the case did played a vital role in establishing the standard of indirect evidence, which was applied in later cases.
The Court tried to create a balance between right of innocent passage and sovereignty of Coastal States. This case led the ground work of UNCLOS, 1982. The case upheld the right of innocent passage of the ships including the warships (during peacetime). The Coastal states may regulate but not prohibit peaceful passage. Decision of the Court at this point was commendable for protecting the interest of both Coastal states and navigational interests of other states.
The Court objected the mine sweeping operations of UK in the territorial waters of Albania. The Court took a firm stand against unilateral actions of States in the territorial waters of another state, that too without its permission.
The Court rejected the self-defence argument of UK. Had it accepted these arguments, it would have resulted in expansion of the exceptions to prohibition on the use of force.
However, this view has also been criticised on the basis of the fact that Court took a formalistic view by keeping sovereignty over practical security concerns.
This case although laid down the various influential principles, which holds a great relevance even today. However, the dissenting opinions of the Judges in this case are also of great importance. The decisions of the majority was logically criticised by the dissenting opinions of the Judges.
They strongly contest majority’s reasoning on various points such as handling of evidence, prioritizing traditional concept of sovereignty over the navigational freedom and state responsibility part. The dissenting opinions seem more concerned about fairness and protection of small states such as Albania. The dissenting opinion reflects that they seem convinced on the fact that UK being an influential State has been favoured by the majority.
It can be concluded here that the dissents continue to enrich academic debate and will act as the guiding light for further development of International law.
To read more article on similar topics click here.
[1] Corfu Channel (United Kingdom v. Albania) (Merits) [1949] ICJ Rep 4.
[2] Corfu Channel case, p. 12-15.
[3] Pg. 12.
[4] Pg. 12.
[5] Pg. 32.
[6] Pg. 30.
[7] Pg. 33-34.
[8] Pg. 17.
[9] Pg. 16
[10] Pg. 10.
[11] Pg. 35.
[12] Pg. 10, Assessment of the amount of compensation due from the People’s Republic of Albania to the United Kingdom of Great Britain and Northern Ireland (including the text of the declaration of the Judge Krylov)
[13] Pg. 36.
Written by Priyanshu Rani ABSTRACTINTRODUCTIONUNDERSTANDING GENDER JUSTICEINTERNATIONAL LAW AND THE INDIAN CONSTITUTIONAPPLICATION OF INTERNATIONAL LAW…
IntroductionObjectivesSignificant changes brought by the SHANTI ActTerritorial jurisdictionEntry of private sectorsOperator’s right of recourseFixation of…
The ChallengeReal Meaning of EducationWay Forward The Challenge The Delhi HC decision that Law Schools…
Case Title: Mihir Rajesh Shah v. State of Maharashtra & Anr.IntroductionFactsIssueArguments by AppellantsArguments by RespondentAmicus…
AbstractNON-STATE ACTORS AND TERRORISM UNDER INTERNATIONAL LAWSEPTEMBER 11 ATTACKS AS THE GENESIS OF ‘WAR ON…
Introduction The Supreme Court constituted the Constitution Bench of 5 Judges to decide on the…