The Corfu Channel Case

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.

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-liquate’ – 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.

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. 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. 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”.

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. 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.

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:

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.

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. 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.

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.

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.