Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. People’s Republic of Albania)

Please note that the scope of this case brief has been set to best serve our purposes in relation to the ULS Intramural Moot Court Competition 2017. Discussion regarding the Right to Innocent Passage and Use of Illegal Force has been curtailed. 

Citation

I.C.J., 1949 1.C.J.4.

Facts

On 22 OCT 1946, two British destroyers struck mines in Albanian waters while navigating through the Corfu Strait and suffered damage including serious loss of life. This channel had been swept in 1944 and check-swept in 1945 and therefore, was regarded as safe. The HMS Saumarez, one of the destroyers, struck a mine and was gravely damaged. The HMS Volage, the other destroyer, was sent to her assistance, however, while towing the HMS Saumarez, struck another mine and was also seriously damaged. Forty-five British officers and sailors lost their lives, and forty-two others were wounded in this series of events. The total damage was estimated at £843.947. It was not contested that this minefield has been recently laid at a time succeeding the 1944 sweep and check-sweep in 1945.

United Kingdom alleged that the Albanian Government was internationally responsible for the consequences of the incidents referred to above and that it must make reparation or pay compensation.

Issue

  • Whether Albania incurred international responsibility for acts of mine-laying of unproven origin in its territorial waters of which it allegedly had no knowledge
  • Whether Albania incurred international responsibility by failing to warn the United Kingdom of the danger due to the mines
  • Whether Albania is liable for compensation for the damages British destroyers suffered in the Corfu Channel

Law

Obligation of Due Diligence

Ruling

The Court declared by 11 votes against 5 that Albania was responsible.

The Court ordered Albania to pay United Kingdom £843,947 in reparations.

Court’s Reasoning

In a second judgement rendered on 9 April 1949, the Court rejected both the suggestion that (1) the Albania herself had laid the mines and (2) the mine-laying had been carried out by two Yugoslav warships by the request of Albania, or with her acquiescence due to lack of evidence. “A charge of such exceptional gravity against a State would require a degree of certainty that has not been reached here, and the origin of the mines laid in Albanian territorial waters remains a matter of conjecture.”

The Court considered two series of facts which corroborate one another, in assessing Great Britain’s claims that “whoever might be the authors of the mine-laying, it could not have been effected without Albania’s knowledge.”

While admitting that “the mere fact that mines were laid in Albanian waters neither involves prima facie responsibility nor does it shift the burden of proof, the Court decided that due to “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 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.”

  • Fact 1: Albanian Government’s attitude before and after the catastrophe

They laying of the mines took place in a period in which Albania had shown its intention to keep a jealous watch on its territorial waters and in which it was requiring prior authorisation before they were entered… all of which render the assertion of ignorance a priori improbable. Moreover, Albanian Government while protesting strongly against the activity of the British fleet, it did not protest against the laying of the mines, though this act, if effected without her consent, would have been a very serious violation of her sovereignty; she did not notify shipping of the existence of the minefield, as would be required by international law; and she did not undertake any of the measures of judicial investigation which would seem to be incumbent on her in such a case.

  • Fact 2: Series of facts related to the possibility of observing the mine-laying from the Albanian coast

Naval experts appointed by the Court reported that they considered it to be indisputable that, if a normal look-out was kept at Cape Kiephali, Denta Point, and St. George’s Monastery, and if the look-outs were equipped with binoculars…, the mine-laying operations must have been noticed by these coastguards.

∴From these series of facts, the Court concluded that the laying of the minefield could not have been accomplished without the knowledge of Albania.

The obligations resulting for Albania from this knowledge are not disputed. It was her duty to notify shipping and especially to warn the ships proceeding through the Strait on October 22nd of the danger to which they were exposed. In fact, nothing was attempted by Albania to prevent the disaster, and these grave omissions involve her international responsibility. The Court answered in the affirmative the question could it not only decide on the principle of compensation but also assess the amount.

In a third Judgment, rendered on 15 December 1949, the Court assessed the total amount of reparation owed to the United Kingdom and ordered Albania to pay £843,947. In assessing this amount the Court held the view of the experts appointed by it and figures given by the United Kingdom to be an exact and reasonable estimate of the damage sustained.

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Joining in 2010, Seungmin is a Founding Member of and Senior Partner at Yonsei ULS. Please be advised: the comment, writing, or column does not represent  the official position of YULS.

 

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