ANALYSIS OF CORFU CHANNEL CASE

THIS ARTICLE WAS WRITTEN BY SHUBHANGI GANDHI, A STUDENT OF RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

INTRODUCTION

After long deliberations at the United Nations conference on the Law of the Sea (UNCLOS), held in Geneva on July 28, it was held that no particular state can own the sea. The sea is a free entity which is open to use and exploit for all nations either coastal or landlocked.  The international sea laws made by the 1982 convention contains detailed and precise regulations.

The provisions of the convention divide the sea waters into 3 classifications i.e., first, territorial sea up to 12 nautical miles; second, exclusive economic zone (EEZ) up to 200 nautical miles; third, beyond 200 nautical miles the High sea.

Sovereign territorial waters of any country expand to 12 nautical miles which is approximately 22 kms. These waters are where the country holds the jurisdiction of the sea waters as well as the internal waters. However, a right to “innocent passage” is to be given to foreign bodies in such territorial waters.

“Passage is innocent as long as a ship refrains from engaging in certain prohibited activities, including weapons testing, spying, smuggling, serious pollution, fishing, or scientific research. Where territorial waters comprise, straits used for international navigation (e.g., the straits of Gibraltar, Mandeb, Hormuz, and Malacca), the navigational rights of foreign shipping are strengthened by the replacement of the regime of innocent passage by one of transit passage, which places fewer restrictions on foreign ships. A similar regime exists in major sea-lanes through the waters of archipelagos”[1]

The Exclusive Economic Zones (EEZ) of extends to 200 nautical miles which is 370 kms from the shore. The coastal shore’s country reserves the right to exploit and utilise the resources of the waters for e.g., using waves to create energy as well as other natural resources.

Beyond this point starts the High Seas which is not included in the EEZ of any state and is open to use by all. All the states reserve the right and have the freedom of navigation, of overflight, of immersion, of fishing and of constructing artificial islands etc. whether landlocked or coastal in such waters.
Although there is the certain alteration to this by the virtue of Article 87(2) which with regards to high sees stated that “shall be exercised with due regard for the interests of other States in their exercise of the freedom of high seas.”[2]

The International Court of Justice, established in 1945, heard its first ever public international law case with the Corfu Channel issue. This case has had a long-standing influence on international laws, in particular “The Law of The Sea”. The decisions taken by the ICJ has served as precedents for various cases involving the case of Nicaragua V. United States.

FACTS OF THE CASE

The Corfu Channel case involves two states namely, The United Kingdom and the people Republic of Albania.

• “The Straits of Corfu or Corfu Channel is the narrow body of water along the coasts of Albaniaand Greece to the east, separating these two countries from the Greek island of Corfu on the west.”

It all started on 15 May 1946, when 2 naval ships of the British in an act of crossing the Corfu Channel faced firing from the Albanian fortifications. The British asked Albania to apologise for such actions by them as they had a right to innocent passage. However, Albania refused to issue any apologies stating that the ships of UK were in their sovereign waters where prior permissions from Albania were required to enter in. UK took the position that no such permissions were needed however, Albania did not change their stance.

To test Albania’s reaction to their alleged right to innocent passage, on October 22, 1946 The British sent 3 ships instructing them to respond if attacked. Now the British had thought the passage to be free of any mines having run a check in 1944 as well as 1945. But, 2 of such British ships struck mines and were heavily damaged. Huge losses in terms of both life and property were suffered by the UK. There was no firing from the Albanian side instead they sent out a ship waving a white flag.

On 13 November 1946, The British carried out a pre-announced unilateral mine-sweeping and evidence-gathering operation within Albanian territorial waters (Territorial Sea) named “Operation Retail”. The Albanian authorities strongly protested and never approved of any such investigations by the UK.

On December 9, UK demanded amends from Albania for laying the mines to which the Albanian authorities denied any involvement and blamed Greece.

In January of 1947, the British approached the UN Security Council. Despite objections from the Soviet Union the security council heard the British Complaint.

A committee to inspect the matter consisting of Polish, Australian and Columbian representatives was formed. However, this committee could not reach any conclusion even after 10 meetings. Owing to the veto used by the Soviet Union, supported by Poland, the motion holding Albania responsible for the minefields was blocked.

Due to such a situation, on 9 April 1947 the UN Security council passed a resolution recommending that this matter be resolved in the International Court of Justice (ICJ). This recommendation was made pursuant to Article 36, paragraph 3 of the United Nations Charter.[3] On 22 May, the United Kingdom brought suit against Albania.[4]

ISSUES OF THE CASE

The issues arising out of this case were pertaining to the facts that;

1. Whether Albania was responsible for the blasts due to the mines in their territorial waters which resulted in loss of life and property and payment of compensation.
2. Whether the warships of British Navy violated the sovereignty of Albanian territorial waters and owned explanation for the same.
3. Whether the pre-announced “Operation Retail” by the British for minesweeping in violation of Albania’s sovereignty.
4. If any of alleges were true, to asses the quantity of compensation and award it.

JUDGEMENT OF THE CASE

The judgement of the Corfu Channel case came out in a phased manner which included the judgement for preliminary objection by Albania, the judgement of the merits case and lastly the determining of compensation and its fulfilment.

On December 9, Albania filed an objection that in case a party is not bound to submit to the jurisdiction of the court, a ‘special agreement’ was the only valid way to carry out proceedings. Albanian government stated that no such agreement existed in the said case.
Delivering its judgement on this preliminary objection on 25 March, 1947 with a majority of 15-1, the court held that Albania had voluntarily submitted to the jurisdiction of the court. Such a submission had happened via letter by Albania to the court dated 2 July which partially accepted the Security Council’s recommendation to approach ICJ.

After the question of admissibility of the case was resolved by the court, the hearing of the case began. However, considering the fact that proceedings could only be carried on via special agreement in case one party does not fall under the jurisdiction of the court (Albania was not a member of the UN), both parties entered into a special agreement in open court which was to be the basis of all further proceedings from March 26.

The second Judgment, rendered on 9 April 1949, related to the merits of the dispute.

For the explosions that had happened in the Albanian waters, the court held Albania responsible under International Law for the loss of life and property. However, the court also observed that the factual evidence presented said pointed at the fact that Albanian Authorities had presumably not put the mines themselves as well as had not collaborated in the mining operations in their waters.

However, the court also held that such mines could not have been put without the knowledge of the authorities. Such evidence of knowledge had to be presented by the victim state or the applicant; in this case- the UK.
Since, direct proof can become impossible to furnish in cases of exclusive control by the state in its international frontiers, the court stated that 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.[5]
The court also stated that there existed an obligation on part of Albania to notify the approaching British warships of the eminent danger that the mines in their waters possessed. Such obligations were based on general principles of humanity and of peace over war.

Albania however, brought a counter claim against the British. Such claims stated the violations done by the British warships by entering their sovereign waters and by conducting the minesweeping without their consent.
The court dismissed Albania’s prior claim of British violating their sovereignty by entering the channel. The court held in favour of UK stating that the Corfu channel connected high seas and hence was free to all states for international navigation and innocent passage. Such innocent passage required no special approval from the state. Hence, the passing of British warships on 22 October were an exercise of their right to innocent passage and completely justified.
The court however, held UK responsible for the minesweeping against the allowance of Albania in its waters. It considered it as a violation of Albania’s sovereignty. The court did not consider British’s claim of “self-help” for the minesweeping operation.

As for the third phase of the judgement, rendered on 15 December 1949, the Court assessed the amount of reparation owed to the United Kingdom and ordered Albania to pay £844,000.[6]

ANALYSIS OF THE CASE

The analysis of the Corfu Channel case brings to light certain principles like the principle of state responsibility, innocent passage as well as of circumstantial evidence.

There arose various questions in front of the court, however, the court at every step followed all principles and with utmost judicious mind and came to a judgement.

The very admissibility of the case had been challenged by the respondent due to an absence of a special agreement. The court held that such an objection was invalid as the respondent had sent out a letter partially accepting the jurisdiction of the court. Such a partial acceptance resulted in voluntary acceptance of jurisdiction. An important factor in this decision was the fact that the Albanian letter had not been produced by Albania’s Agent, but by the Deputy Minister of Foreign Affairs.[7] The British had sent out an application to Albania to which they had not responded which was also presented in the court.

The judgement of the case went a long way in establishing the principles of the Law of the Sea becoming a landmark case.

The judgement has also laid down the elementary considerations of humanity also falling under the principle of state responsibility. In this case there existed an incumbent responsibility on the part of Albania to warn the approaching foreign ships of the danger they were about to face. 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.[8]

The judgement however, is not biased toward any country. It is a judgement partially to favour the UK and partially in favour of Albania. The rule of innocent passage was clear and there was no confusion that the British were right in exercising their right to the same. However, what the judgement establishes is the fact that no prior approval of the state is required for an innocent passage even in the territorial seas of a state which is up to 12 nautical miles from the shore. It does not constitute a violation of sovereignty in case a foreign ship is using territorial seas for innocent passage which consists of international navigation.

However, the minesweeping by the British called “Operation Retail” was highly in violation of the sovereignty of the state of Albania. Such an operation did not fall under any innocent passage. The UK tried to escape such an allegation by calling it “self-help”. However, the court dismissed any such claims of the British.

The principle of circumstantial evidence was also laid down due to this case. It simply means that there might be certain cases where direct proof can not be established to held a party responsible. In such cases direct inferences of facts can be considered as concrete to hold decision only if such inferences made logical sequences and left no space for any reasonable doubt.

At the end of it there arose problems in the payment of compensation by the government of Albania as well. Final settlement did not take place until the 1990s, after the end of socialism in Albania!

[1] Robing churchill, Law of the Seainternational law [1982], (29 October 2020), https://www.britannica.com/topic/Law-of-the-Sea.

[2] Mayank Shekhar, Law of The Sea – History, Evolution and Provisions, https://www.legalbites.in/public-international-law-notes-law-of-sea/.

[3] Rosenne 2006, p. 670.

[4] Bancroft & Stein 1949, p. 646.

[5] Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), International Court of Justice, https://www.icj-cij.org/en/case/1.

[6] Id.

[7] Rosenne 2006, p. 697.

[8] Corfu Channel, U.K. v. Albania, Judgment, 1948 I.C.J. 15 (Mar. 25).