25 March 1948

 

General List No. 2

 
     

international Court of Justice

     
 

Corfu Channel

 
     

United Kingdom

 

v. 

Albania

     
     
 

Judgment

 
     
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BEFORE:

President: Guerrero;
Vice-President: Basdevant;
Judges: Alvarez, Fabela, Hackworth, Winiarsky, Zoricic, De Wisscher, Sir Arnold McNair, Klaestad, Badavi Pasha, Krylov, Read, Hsu Mo, Azevedo;
Judge Ad Hoc: M. Daxner
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1948.03.25_corfu.htm
   
Citation: Corfu Channel, U.K. v. Albania, Judgment, 1948 I.C.J. 15 (Mar. 25)
   
Represented By: United Kingdom: Mr.W.E.Beckett, Legal Adviser to the Foreign Office; Sir Hartley Shawcross, Attorney-General; Dr. H. Lauterpacht, Professor;
Mr.C.H.M.Waldock, Professor; Mr.R.O.Wilberforce; Mr.J.Mervyn Jones; Mr.M.E.Reed;
Albania: M. Kahreman Ylli, Minister Plenipotentiary of Albania in Paris, as Agent; assisted by Professor Vladimir Vochoč, Professor of international law in Charles University at Prague; Professor Ivo Lapenna, Professor of international law in the University at Zagreb, as Counsel.
 
     
 
 
     
 

[p16]
The Court,
composed as above,
delivers the following judgment:

[1] By an Application, transmitted to and filed in the Registry of the Court on May 22nd, 1947, under Article 40, paragraph 1, of the Statute, and Article 32, paragraph 2, of the Rules of Court, the Government of the United Kingdom of Great Britain and Northern Ireland instituted proceedings before the Court against the Government of the People's Republic of Albania. These proceedings concerned the incident which occurred in the Corfu Channel on October 22nd, 1946, when two British destroyers struck mines, the explosion of which caused damage to these vessels and heavy loss of life. [p17]

[2] It is stated in the Application that the subject of the dispute and the succinct statement of the facts and grounds on which the claim of the United Kingdom is based are to be found in a note dated December 9th, 1946, transmitted by the Government of the United Kingdom to the Albanian Government, a copy of which is attached to the Application. It is alleged in the Application that the Court has jurisdiction "under Article 36 (1) of its Statute as being a matter, which is one specially provided for in the Charter of the United Nations, on the grounds : (a) that the Security Council of the United Nations, at the conclusion of proceedings in which it dealt with the dispute under Article 36 of the Charter, by a Resolution, decided to recommend both the Government of the United Kingdom and the Albanian Government to refer the present dispute to the International Court of Justice; (b) that the Albanian Government accepted the invitation of the Security Council under Article 32 of the Charter to participate in the discussion of the dispute and accepted the condition laid down by the Security Council, when conveying the invitation, that Albania accepts in the present case all the obligations which a Member of the United Nations would have to assume in a similar case; (c) that Article 25 of the Charter provides that the Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter."

[3] Finally, it is stated in the Application that the purpose of the claim of the Government of the United Kingdom is to secure a decision of the Court that the Albanian Government is internationally responsible for the loss and injury resulting from the fact that two destroyers of the Royal Navy struck mines in Albanian territorial waters in the Corfu Channel, and to have the reparation or compensation due therefor from the Albanian Government determined by the Court.

[4] By a telegram of January 24th, 1947, the Albanian Government accepted the decision of the Security Council inviting it, in accordance with Article 32 of the Charter, to participate, without a vote, in the proceedings with regard to the dispute, on condition that Albania should accept, in the present case, all the obligations which a Member of the United Nations would have to assume in a similar case.

[5] The Resolution of the Security Council of April 9th, 1947, to which the Application refers, is as follows:

"The Security Council having considered statements of representatives of the United Kingdom and Albania concerning a dispute between the United Kingdom and Albania arising out of an incident on 22nd October, 1946, in the Strait of Corfu in which two British ships were damaged by mines with resulting loss of life and injury to their crews recommends that the United Kingdom and Albanian Governments should immediately refer the dispute to the International Court of Justice in accordance with the provisions of the Statute of the Court." [p18]

[6] Notice of the Application of the Government of the United Kingdom was given on May 22nd, 1947, by the Registrar of the Court, to the Albanian Government by telegram and by letter. On the same day, the Application was transmitted by the Registrar to the Secretary-General of the United Nations for communication in accordance with Article 40, paragraph 3, of the Statute.

[7] On June 23rd, 1947, the Registrar received from the Albanian Government, following upon a reminder addressed to the latter, a telegram acknowledging receipt of the letter and telegram of May 22nd, and announcing the despatch of a reply to these communications.

[8] On July 23rd, 1947, the Deputy-Registrar received from the hands of M. Kahreman Ylli, Albanian Minister in Paris, a letter from the Deputy-Minister of Foreign Affairs of Albania, dated at Tirana, July 2nd, 1947, which confirmed the receipt of the Application, and, after referring to the contents of that document, requested the Registrar

"to be good enough to bring the following statement to the knowledge of the Court:

The Government of the People's Republic of Albania finds itself obliged to observe:

1.That the Government of the United Kingdom, in instituting proceedings before the Court, has not complied with the recommendation adopted by the Security Council on 9th April, 1947,whereby that body recommended 'that the United Kingdom and Albanian Governments should immediately refer the dispute to the International Court of Justice in accordance with the provisions of the Statute of the Court'.
The Albanian Government considers that, according both to the Court's Statute and to general international law, in the absence of an acceptance by Albania of Article 36 of the Court's Statute or of any other instrument of international law whereby the Albanian Government might have accepted the compulsory jurisdiction of the Court, the Government of the United Kingdom was not entitled to refer this dispute to the Court by unilateral application.
2.It would appear that the Government of the United Kingdom endeavours to justify this proceeding by invoking Article 25 of the Charter of the United Nations.
There can, however, be no doubt that Article 25 of the Charter relates solely to decisions of the Security Council taken on the basis of the provisions of Chapter VII of the Charter and does not apply to recommendations made by the Council with reference to the pacific settlement of disputes, since such recommendations are not binding and consequently cannot afford an indirect basis for the compulsory jurisdiction of the Court, a jurisdiction which can only ensue from explicit declarations made by States Parties to the Statute of the Court, in accordance with Article 36, 3, of the Statute.
3. The Albanian Government considers that, according to the terms of the Security Council's recommendation of 9th April, 1947,the Government of the United Kingdom, before bringing the case [p19] before the International Court of Justice, should have reached an understanding with the Albanian Government regarding the conditions under which the two Parties, proceeding in conformity with the Council's recommendation, should submit their dispute to the Court.
The Albanian Government is therefore justified in its conclusion that the Government of the United Kingdom has not proceeded in conformity with the Council's recommendation, with the Statute of the Court or with the recognized principles of international law.

In these circumstances, the Albanian Government would be within its rights in holding that the Government of the United Kingdom was not entitled to bring the case before the Court by unilateral application, without first concluding a special agreement with the Albanian Government.
4. The Albanian Government, for its part, fully accepts the recommendation of the Security Council.
Profoundly convinced of the justice of its case, resolved to neglect no opportunity of giving evidence of its devotion to the principles of friendly collaboration between nations and of the pacific settlement of disputes, it is prepared, notwithstanding this irregularity in the action taken by the Government of the United Kingdom, to appear before the Court.
Nevertheless, the Albanian Government makes the most explicit reservations respecting the manner in which the Government of the United Kingdom has brought the case before the Court in application of the Council's recommendations and more especially respecting the interpretation which that Government has sought to place on Article 25 of the Charter with reference to the binding character of the Security Council's recommendations. The Albanian Government wishes to emphasize that its acceptance of the Court's jurisdiction for this case cannot constitute a precedent for the future.
Accordingly, the Government of the People's Republic of Albania has the honour to inform you that it appoints as its Agent, in accordance with Article 35, paragraph 3, of the Rules of Court, M. Kahreman Ylli, Minister Plenipotentiary of Albania in Paris, whose address for service at the seat of the Court is the Legation of the Federal People's Republic of Yugoslavia at The Hague."

[9] A copy of this letter, which had been handed to the Registry by the Agent for the Albanian Government, was transmitted, on July 24th, to the Agent for the Government of the United Kingdom.

[10] On July 31st, 1947, the President of the Court, as the Court was not sitting, made an Order, in which, after ascertaining the views of the Parties with regard to questions of procedure, it was stated:

"Whereas on July 23rd, 1947, a note signed by the Deputy-Minister for Foreign Affairs was filed with the Registry on behalf of the Government of the People's Republic of Albania, in response to the Application of the Government of the United Kingdom;
Whereas, in this note, the Albanian Government declares inter alia that the Government of the United Kingdom, in bringing the case before the Court by unilateral application, has not [p20] proceeded in conformity with the recommendation of the Security Council of April 9th, 1947, or with the Statute of the Court or the recognized principles of international law, and that, accordingly, the Albanian Government would be within its rights in holding that the Government of the United Kingdom was not entitled to bring the case before the Court without first concluding a special agreement with the Albanian Government, but whereas the Albanian Government, fully accepting for its part the recommendation of the Security Council, is prepared, notwithstanding this irregularity and in evidence of its devotion to the principles of friendly collaboration between nations and of the pacific settlement of disputes, to appear before the Court;
Whereas the note above mentioned gives notice of the appointment as Agent for the Albanian Government of M. Kahreman Ylli, Minister Plenipotentiary of Albania in Paris, and of his address for service at The Hague;
Whereas, having regard to the Resolution of the Security Council of April 9th, 1947, the said note of the Albanian Government may be regarded as constituting the document mentioned in Article 36 of the Rules of Court;"

[11] In the Order, the time-limits were fixed as follows: the 1st October, 1947, for the presentation of the Memorial of the United Kingdom, and the 10th December, 1947, for the presentation of the Counter-Memorial of Albania.

[12] The Memorial of the United Kingdom, presented within the time-limit fixed by the Order, contains statements and submissions with regard to the incidents which occurred on October 22nd, 1946, in the Corfu Channel. These statements and submissions develop the points indicated in the Application as constituting the claim of the United Kingdom.

[13] Within the time-limit fixed for the presentation of the Counter-Memorial, the Agent for the Albanian Government, by a document dated December 1st and filed in the Registry on December 9th, submitted a Preliminary Objection to the Application on the ground of inadmissibility, based upon the following statements:

"I. The facts:

(1) The Security Council, in a Resolution adopted on April 9th last, recommended that the United Kingdom and Albanian Governments should immediately refer the dispute between them arising out of an incident on October 22nd, 1946, in the Strait of Corfu, to the International Court of Justice, in accordance with the provisions of the Statute of the Court;
(2) contrary to this recommendation, the United Kingdom Government, alone and without any agreement with the Albanian Government, approached the Court on May 13th last. By proceeding thus unilaterally, the Government of the United Kingdom brought an Application before the Court;
(3) on July 2nd last, the Albanian Government made to the Court most explicit reservations respecting the manner in which [p21] the Government of the United Kingdom had brought the case before the Court, but, subject to these reservations, stated that it was prepared to appear before the Court;
(4) on the other hand, the Albanian Government, in its letter of July 2nd last addressed to the Court, fully accepted the Security Council's recommendation of April 9th last, as far as it was concerned, and observed that, to bring their case before the Court, the two Governments should have reached an understanding in conformity with the Security Council's recommendation and in accordance with the provisions of the Court's Statute.

II. The Law:

(1) According to Article 36, paragraph 1, of the Court's Statute, its jurisdiction 'comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force'. According to Article 40, paragraph 1, of the Statute, 'cases are brought before the Court, as the case may be, either by the notification of the special agreement or by a written application....'.
(2) The Albanian Government not being bound by any treaty or convention in force to submit its dispute with the United Kingdom Government to the Court, it follows that, in accordance with the provisions of the Statute of the Court, only both parties to this dispute can validly do so.
If this is so, the case must be brought before the Court by the notification of the special agreement, and not by an application.
(3) In its Application of May 13th last, the United Kingdom Government invokes no treaty or convention nor does it claim that the parties are submitting their dispute to the Court in accordance with the provisions of the Statute.
The United Kingdom Government maintains that this is a 'matter, which is one specially provided for in the Charter of the United Nations, on the grounds: (a) that the Security Council of the United Nations, at the conclusion of proceedings in which it dealt with the dispute under Article 36 of the Charter, by a Resolution, of which a copy forms Annex 2 to this Application, decided to recommend both the Government of the United Kingdom and the Albanian Government to refer the present dispute to the International Court of Justice ; (b) that the Albanian Government accepted the invitation of the Security Council under Article 32 of the Charter to participate in the discussion of the dispute and accepted the condition laid down by the Security Council, when conveying the invitation, that Albania accepts in the present case all the obligations which a Member of the United Nations would have to assume in a similar case. (A copy of the invitation of the Security Council and of the Albanian Government's reply thereto form Annex 3 to the present Application) ; (c) that Article 25 of the Charter provides that the Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.' (See letter from the Agent of the Government of the United Kingdom of Great Britain and Northern Ireland, dated May 13th, 1947.) [p22]
As regards these reasons given by the United Kingdom Government, the Albanian Government has the honour to make the following observations:

Ad (a) The Security Council, in its Resolution of April 9th last, only recommended 'the United Kingdom and Albanian Governments' to refer their dispute to the International Court of Justice in accordance with the provisions of the Statute of the Court.
Such a recommendation certainly cannot ipso facto constitute a matter specially provided for in the Charter of the United Nations to which the Court's jurisdiction extends. Nothing in the Charter of the United Nations provides for such a case;
ad (b) In complying with the invitation given by the Secretary-General ad interim of the United Nations on January 20th last, the Albanian Government only accepted 'in the present case all the obligations which a Member of the United Nations would have to assume in a similar case', within the meaning of Article 32 of the Charter.
As it was a recommendation, the obligations cannot ipso facto constitute a matter specially provided for in the Charter of the United Nations with a view to the Court's compulsory jurisdiction.
As a result of rights and obligations assumed by them in the Charter, Members of the United Nations are never bound to appear before the Court without any other procedure, namely, without having duly and expressly accepted the Court's jurisdiction in conformity with the provisions of its Statute;
ad (c) The Security Council's Resolution of April 9th last contains a recommendation which, in conformity with the Charter of the United Nations, has no binding force for the Governments of Albania and the United Kingdom without their consent and acceptance. Moreover, according to the very terms of the Resolution, the two Governments must proceed in conformity with the provisions of the Statute of the Court in order that they may submit their dispute to it.
The said Resolution of the Security Council cannot, in conformity with the Charter of the United Nations and with the provisions of the Statute of the Court, be considered to be a decision of the Security Council, such as would on the one hand oblige both parties, ipso facto and without any other step, to appear before the International Court of Justice, and such as would, on the other hand, authorize them to approach the International Court of Justice without regard to the provisions of the Statute of the Court.
To sum up the foregoing observations, the Albanian Government asserts that neither the said Resolution of April 9th last, nor the said declaration of the Albanian Government of 20th January last, nor yet Article 25 of the Charter, can, whether taken separately or conjointly, be relied on as imposing the Court's compulsory jurisdiction on the Albanian Government in the present case.

III. Conclusions: ……………………………………………………[p23]
May it please the Court to proceed in conformity with Article 62 of the Rules of Court,
to place on record that, in accepting the Security Council's recommendation, the Albanian Government is only obliged to submit the above-mentioned dispute to the Court in accordance with the provisions of the Statute of the Court,
and to give judgment that the Application of May 13th last addressed to the Court by the Government of the United Kingdom against the Government of the People's Republic of Albania, is inadmissible, the United Kingdom Government having submitted the said Application contrary to the provisions of Article 40, paragraph 1, and of Article 36, paragraph 1, of the Statute of the Court."

[14] The Albanian Preliminary Objection was transmitted, on December 9th, to the Agent for the United Kingdom and was communicated on December 11th to the Members of the United Nations, pursuant to the provisions of Article 63 of the Statute.

[15] By an Order, made on December 10th, 1947, the President of the Court, as the Court was not sitting, fixed January 20th, 1948, as the time-limit for the presentation by the Government of the United Kingdom of a written statement of its observations and submissions in regard to the Preliminary Objection.

[16] This statement, dated January 19th, 1948, and received in the Registry on the same date, contains, in addition to a number of arguments, the following statements and submissions:

"9
(a) It [the Government of the United Kingdom] has fully complied with the recommendation of the Security Council immediately to refer the dispute to the Court. It did so in its Application of 13th May, 1947, which fully and clearly indicated the subject of the dispute, and the parties, in accordance with Article 40 (1) of the Statute of the Court and Article 32 (2) of the Rules of Court.
(b) The Government of Albania, after delivery of the United Kingdom Application, stated in its letter of 2nd July, 1947, that it fully accepted the recommendation of the Security Council, and that it was prepared to appear before the Court and to accept its jurisdiction in this case.
(c) This Albanian letter, coupled with the Resolution of the Security Council of 9th April, 1947, was accepted by the President of the Court as a document which satisfied the conditions laid down by the Security Council for the appearance before the Court of a State not party to the Statute. (See Resolution of the Security Council of 15th October, 1946, under which a State not party to the Statute may make a 'particular declaration' accepting the jurisdiction of the Court in respect of a particular dispute only.)
(d) In these circumstances the jurisdiction of the Court to make the Order of 31st July, 1947, and to proceed with the trial of this dispute is fully established. Under Article 36 (1) of the Statute, the jurisdiction of the Court comprises all cases [p24] which the parties refer to it, and there is no dispute which States entitled to appear before the Court cannot refer to it.... The parties have clearly referred the present dispute by the above-mentioned documents (namely, the United Kingdom Application of 13th May, 1947, and the Albanian letter of 2nd July, 1947), which, whether or not they constitute a 'special agreement', at least constitute a 'reference'. A special agreement is not necessary....
(e) Article 40 of the Statute merely defines the formal basis for action by the Court in a case where jurisdiction is established by Article 36 (1). There is nothing in the Statute or the Rules of Court which prevents the proceedings being formally instituted by application, even though the jurisdiction of the Court is established by a 'reference' by the parties or by a 'special agreement'. Accordingly the Government of the United Kingdom, in bringing this matter before the Court by application, has, it is submitted, proceeded correctly....
(f) Further, there has been, in fact, an agreement between the parties constituted by the acceptance of the jurisdiction on the part of the Government of the United Kingdom in compliance with the Resolution of the Security Council of 9th April, 1947 (as evidenced by its Application of 13th May, 1947), followed by an acceptance of the jurisdiction on the part of the Government of Albania in its letter of 2nd July, 1947, to refer (without prejudice to the Albanian Government's view as to the interpretation of Article 25 of the Charter) to the Court the issues defined in the Application. This agreement possesses all the essentials of a 'special agreement' and conforms fully with Article 40 of the Statute....
(g) Even if (which is not admitted) there was any formal irregularity in the mode of the commencement of the present proceedings, this irregularity has been cured, because the Albanian Government by its letter of 2nd July, 1947, has waived any possible objection and has consented to the jurisdiction of the Court. An irregularity in the manner in which a case is introduced may be cured by subsequent events....
(h)Having once consented to the jurisdiction, the Albanian Government cannot afterwards withdraw its consent....
(i) The President's Order of 31st July, 1947, clearly proceeded upon
the basis that the Albanian Government had definitely accepted the jurisdiction, as was, in fact, the case. It is not competent for the Albanian Government to reopen the question of jurisdiction.
12. In view of the circumstances above referred to, which constitute, in the submission of the Government of the United Kingdom, a clear acceptance by Albania of the jurisdiction of the Court, the Government of the United Kingdom has not, in these Observations, set forth arguments on the applicability of Article 25 of the Charter. However, the Government of the United Kingdom must reserve the right, if necessary, to invoke the jurisdiction of the Court on the grounds set forth in its original Application." [p25]

[17] In conclusion, the Government of the United Kingdom

"submits to the Court:—
(a) that the preliminary objection submitted by the Government of Albania should be dismissed,
(b) that the Government of Albania should be directed to comply with the terms of the President's Order of 31st July, 1947, and to deliver a Counter-Memorial on the merits of the dispute without further delay."

[18] As the Court did not have upon the Bench a judge of Albanian nationality, the Albanian Government availed itself of the right provided by Article 31, paragraph 2, of the Statute, and designated Dr. Igor Daxner, President of a Chamber of the Supreme Court of Czechoslovakia, as judge ad hoc.

[19] In the course of public sittings, held on February 26th, 27th and 28th, and on March 1st, 2nd and 5th, 1948, the Court heard oral arguments on behalf of the respective parties : M. Kahreman Ylli, Agent, and Professor Vochoč, Counsel, for Albania; and Mr. W. E. Beckett, Agent, and Sir Hartley Shawcross, Counsel, for the United Kingdom. On being questioned by the President before the close of the hearing, the Agent for the Albanian Government declared that the submissions presented in the Albanian Preliminary Objection of December 9th, 1947, were final submissions ; a similar declaration was made on behalf of the Agent for the Government of the United Kingdom with regard to the submissions in the Observations of the United Kingdom of January 19th, 1948.

[20] Documents in support were filed as annexes to the Application and Memorial of the United Kingdom Government, to the Preliminary Objection of the Albanian Government and to the Observations of the United Kingdom Government in regard to this Preliminary Objection, as well as in view of the oral proceedings FN1

---------------------------------------------------------------------------------------------------------------------
FN1 See list in Annex
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[21] The above being the state of the proceedings, the Court must now adjudicate upon the Preliminary Objection raised on behalf of the Government of the People's Republic of Albania.

***

[22] In the written submissions, which it confirmed orally at the hearing on March 5th, 1948, the Albanian Government requests the Court

"to place on record that the Albanian Government, in accepting the Security Council's recommendation, is only obliged to submit the above-mentioned dispute to the Court in accordance with the provisions of the Statute of the Court",

and

"to give judgment that the Application of May 13th last, addressed to the Court by the Government of the United Kingdom against the [p26] Government of the People's Republic of Albania, is inadmissible, the Government of the United Kingdom having submitted the said Application contrary to the provisions of Article 40, paragraph 1, and Article 36, paragraph 1, of the Statute of the Court".

[23] The first submission relates to the Resolution of April 9th, 1947, in which the Security Council recommended "that the United Kingdom and Albanian Governments should immediately refer this dispute to the International Court of Justice in accordance with the provisions of the Statute of the Court". The Albanian Government accepted this recommendation and on the basis of its acceptance recognizes its obligation to refer the dispute to the Court in accordance with the provisions of the Statute. It is true that this obligation could only be fulfilled in accordance with the provisions of the Statute. In recognizing this fact in accordance with the request of the Albanian Government, the Court points out that that Government subsequently contracted other engagements, the date and exact scope of which will be established later.

[24] The second submission of the Albanian Government, which is disputed by the Government of the United Kingdom, appears to constitute an objection on the ground of the inadmissibility of the Application. The intention of the Albanian Government, however, seems to be somewhat lacking in precision in this respect. When it refers, in its submissions, to Article 40, paragraph 1, of the Statute of the Court, the Albanian Government appears merely to have in mind a procedural irregularity resulting from the fact that the main proceedings were instituted by means of an application instead of by a special agreement concluded beforehand. The Albanian Government, however, also refers to Article 36, paragraph 1, of the Statute, a provision which relates exclusively to the jurisdiction of the Court ; and the criticisms which are directed against the Application of the United Kingdom in the text of the Preliminary Objection, relate to an alleged lack of compulsory jurisdiction as well as to the formal admissibility of the Application.

[25] This argument may be explained by the connexion which the United Kingdom Government, for its part, had made between the institution of proceedings by application and the existence, alleged by it in this case, of compulsory jurisdiction.

[26] In support of its Application, the Government of the United Kingdom invoked certain provisions of the Charter of the United Nations and of the Statute of the Court to establish the existence of a case of compulsory jurisdiction. The Court does not consider that it needs to express an opinion on this point, since, as will be pointed out, the letter of July 2nd, 1947, addressed by the Albanian Government to the Court, constitutes a voluntary acceptance of its jurisdiction.

[27] The letter of July 2nd, 1947, in spite of the reservation stated therein, the exact scope of which will be considered later, removes [p27] all difficulties concerning the question of the admissibility of the Application and the question of the jurisdiction of the Court.

[28] With respect to the first point, the Albanian Government, while declaring on the one hand that it "would be within its rights in holding that the Government of the United Kingdom was not entitled to bring the case before the International Court by unilateral application, without first concluding a special agreement with the Albanian Government", states, on the other hand, that "it is prepared, notwithstanding this irregularity in the action taken by the Government of the United Kingdom, to appear before the Court". This language used by the Albanian Government cannot be understood otherwise than as a waiver of the right subsequently to raise an objection directed against the admissibility of the Application founded on the alleged procedural irregularity of that instrument.

[29] The letter of July 2nd, 1947, is no less decisive as regards the question of the Court's jurisdiction. Not only does the Albanian Government, which had already assumed certain obligations towards the Security Council by its telegram of January 24th, 1947, declare in that letter that it "fully accepts the recommendation of the Security Council" to the effect that the dispute should be referred to the Court in accordance with the provisions of the Court's Statute, but, after stating that it is "profoundly convinced of the justice of its case", it accepts in precise terms "the jurisdiction of the Court for this case". The letter of July 2nd, therefore, in the opinion of the Court, constitutes a voluntary and indisputable acceptance of the Court's jurisdiction.

[30] While the consent of the parties confers jurisdiction on the Court, neither the Statute nor the Rules require that this consent should be expressed in any particular form.

[31] The Albanian contention that the Application cannot be entertained because it has been filed contrary to the provisions of Article 40, paragraph 1, and of Article 36, paragraph 1, of the Court's Statute, is essentially founded on the assumption that the institution of proceedings by application is only possible where compulsory jurisdiction exists and that, where it does not, proceedings can only be instituted by special agreement.

[32] This is a mere assertion which is not justified by either of the texts cited. Article 32, paragraph 2, of the Rules does not require the Applicant, as an absolute necessity, but only "as far as possible", to specify in the application the provision on which he founds the jurisdiction of the Court. It clearly implies, both by its actual terms and by the reasons underlying it, that the institution of proceedings by application is not exclusively reserved for the domain of compulsory jurisdiction.

[33] In submitting the case by means of an Application, the Government of the United Kingdom gave the Albanian Government the [p28] opportunity of accepting the jurisdiction of the Court. This acceptance was given in the Albanian Government's letter of July 2nd, 1947.

[34] Besides, separate action of this kind was in keeping with the respective positions of the parties in proceedings where there is in fact a claimant, the United Kingdom, and a defendant, Albania.

[35] Furthermore, there is nothing to prevent the acceptance of jurisdiction, as in the present case, from being effected by two separate and successive acts, instead of jointly and beforehand by a special agreement. As the Permanent Court of International Justice has said in its Judgment No. 12, of April 26th, 1928, page 23:

"The acceptance by a State of the Court's jurisdiction in a particular case is not, under the Statute, subordinated to the observance of certain forms, such as, for instance, the previous conclusion of a special agreement."

[36] The Security Council's recommendation has been relied upon to support opposite conclusions. But, in the first place, though this recommendation clearly indicates that the bringing of the case before the Court requires action on the part of the parties, it does not specify that this action must be taken jointly, and, in the second place, the method of submitting the case to the Court is regulated by the texts governing the working of the Court as was pointed out by the Security Council in its recommendation.

[37] The Court cannot therefore hold to be irregular a proceeding which is not precluded by any provision in these texts.

[38] The scope of the reservation formulated in the letter of July 2nd, 1947, has still to be considered. The reservation is as follows:

"Nevertheless, the Albanian Government makes the most explicit reservations respecting the manner in which the Government of the United Kingdom has brought the case before the Court in application of the Security Council's recommendation and more especially respecting the interpretation which that Government has sought to place on Article 25 of the Charter with reference to the binding character of the Security Council's recommendations. The Albanian Government wishes to emphasize that its acceptance of the Court's jurisdiction for this case cannot constitute a precedent for the future."

[39] This reservation is the only limit set by the Albanian Government either to its acceptance of the Court's jurisdiction, or to its abandonment of any objection to the admissibility of the proceedings. It is for the Court to decide, with binding force as between the parties, what is the interpretation of the letter of July 2nd, 1947. It is clear that the reservation contained in the letter is intended only to maintain a principle and to prevent the establishment of a precedent as regards the future. The Albanian Government makes its reservations—both as to the manner in which the United Kingdom Government has instituted [p29] the proceedings, and as to the interpretation which that Government claimed to give to Article 25 of the Charter with a view to establishing the Court's compulsory jurisdiction—not for the purposes of the present proceedings, but in order to retain complete freedom of decision in the future. It is clear that no question of a precedent could arise unless the letter signified in the present case the acceptance of the Court's jurisdiction on the merits.

[40] The reservation in the letter of July 2nd, 1947, therefore does not enable Albania to raise a preliminary objection based on an irregularity of procedure, or to dispute thereafter the Court's jurisdiction on the merits.

[41] For these reasons,
while placing on record the declaration contained in the first submission of the Albanian Government, but subject to the explicit reservation of the obligations assumed by that Government in its letter of July 2nd, 1947,
The Court,
by fifteen votes against one,

(1) rejects the Preliminary Objection submitted by the Albanian Government on December 9th, 1947;
(2) decides that prozv 7ceedings on the merits shall continue and fixes the time-limits for the filing of subsequent pleadings as follows:

(a) for the Counter-Memorial of the Albanian Government, Tuesday, June 15th, 1948 ;
(b) for the Reply of the United Kingdom Government, Monday, August 2nd, 1948;
(c) for the Rejoinder of the Albanian Government, Monday, September 20th, 1948.

[42] The present judgment has been drafted in French and English, the French text being authoritative. [p30]

[43] Done at the Peace Palace, The Hague, this twenty-fifth day of March, one thousand nine hundred and forty-eight, in three copies, one of which shall be placed in the archives of the Court and the others delivered to the Governments of the People's Republic of Albania and of the United Kingdom of Great Britain and Northern Ireland respectively.

(Signed) J.G.Guerrero,
President.

(Signed) Edvard Hambro,
Registrar.

[44] Judges Basdevant, Alvarez, Winiarski, Zoričič, De Visscher, Badawi Pasha, Krylov, whilst concurring in the judgment of the Court, have availed themselves of the right conferred on them by Article 57 of the Statute and appended to the judgment a statement of their separate opinion.

[45] M. Daxner, Judge ad hoc, declaring that he is unable to concur in the judgment of the Court, has availed himself of the right conferred on him by Article 57 of the Statute and appended to the judgment a statement of his separate opinion.

(Initialled) J. G. G.

(Initialled) E. H. [p31]

Separate Opinion By Judges Basdevant, Alvarez, Winiarski, Zoričič, De Visscher, Badawi Pasha And Krylov.

[Translation.]

[46] Whilst concurring in the judgment of the Court, we feel obliged to state that we should have wished the Court to have passed upon the merits of the claim of the Government of the United Kingdom to treat the present case as one falling within the compulsory jurisdiction of the Court. Since the Application was based upon this claim and since the claim, if well-founded, would, in itself, have justified recourse to this method of instituting proceedings without there having been any need to consider the effect of the letter of July 2nd, 1947, it appears to us that, logically, the question of compulsory jurisdiction falls to be dealt with first of all.

[47] This question has been discussed at length both in the pleadings and during the oral proceedings. It arose because we were faced here with a procedure which, regarded as a whole, is the outcome of an innovation in the Charter of the United Nations. Under the regime of the Charter, the rule holds good that the jurisdiction of the International Court of Justice, as of the Permanent Court of International Justice before it, depends on the consent of the States parties to a dispute. But Article 36 of the Charter has made it possible for the Security Council to recommend the parties to refer their dispute to the International Court of Justice in accordance with the provisions of the Court's Statute. The Security Council, for the first time, availed itself of this power on April 9th, 1947. The contentious procedure, recourse to which the Security Council thus recommended, involves, in order that the Court may be seized of the case, certain action by the parties or, possibly, by one of them. Faced with this new solution, the Governments concerned had different views as to the effect of the recommendation and, consequently, as to the method to be adopted in bringing the case before the Court.

[48] The Government of the United Kingdom held, on various grounds deduced by it from the provisions of the Charter and Statute, that this was a new case where the compulsory jurisdiction of the Court existed. Accordingly, it instituted proceedings by Application and cited in its Application the provisions of the Charter and Statute on which it founded the Court's jurisdiction.

[49] The arguments presented on behalf of the United Kingdom to establish that this was a new case of compulsory jurisdiction— which arguments the Agent and Counsel for the Albanian Government sought to refute—have not convinced us. In particular, [p32] having regard (1) to the normal meaning of the word recommendation, a meaning which this word has retained in diplomatic language, as is borne out by the practice of the Pan-American Conferences, of the League of Nations, of the International Labour Organization, etc., (2) to the general structure of the Charter and of the Statute which founds the jurisdiction of the Court on the consent of States, and (3) to the terms used in Article 36, paragraph 3, of the Charter and to its object which is to remind the Security Council that legal disputes should normally be decided by judicial methods, it appears impossible to us to accept an interpretation according to which this article, without explicitly saying so, has introduced more or less surreptitiously, a new case of compulsory jurisdiction.

[50] On this point, the view maintained on behalf of the Albanian Government appears to us well-founded, but when that Government claims to argue therefrom that in this case the institution of proceedings by application was irregular, then we are unable, for the reasons given in the judgment, to accept this argument.

(Signed ) Basdevant.
( “ ) Alvarez,
( “ ) B. Winiarski
( “ ) Dr. Zoričič,
( “ ) CH. De Visscher.
( “ ) A. Badawi.
( “ ) S. Krylov. [P33]

Dissenting Opinion by Dr. Igor Daxner

[51] I am unable to concur in the present judgment on the Preliminary Objection submitted by the Government of the People's Republic of Albania in the Corfu Channel case.

[52] Of the many different points in the judgment upon which I differ from the Court, I shall confine myself to referring to certain of the more important in the opinion which follows:

[53] I. In support of its Application, the Government of the United Kingdom invoked certain provisions of the Charter of the United Nations and of the Statute of the Court to establish in the present case the existence of a case of compulsory jurisdiction. The Court does not consider that it needs to express any opinion on this point, since, according to the Court, the letter of July 2nd, 1947, addressed by the Albanian Government to the Court, constitutes a voluntary acceptance of its jurisdiction.

[54] In the opinion of the Court, the letter of July 2nd, 1947, in spite of the reservation made therein, the exact scope of which the Court considers later, removes all difficulties concerning the question of the admissibility of the Application and the question of the jurisdiction of the Court.

[55] It was contended by the Government of the United Kingdom that the recommendation made by the Security Council under Chapter VI of the Charter, and more particularly under Article 36, paragraph 3, is if so facto obligatory for the parties to whom it is addressed. The compulsory jurisdiction of the Court would thus be established in virtue of the recommendation of 9th April for the United Kingdom and Albania in the present case. Special stress was laid in this connexion by the representative of the United Kingdom on Article 25 of the Charter, the recommendation under Article 36 (3) of the Charter being construed in virtue of Article 24 (2) of the Charter as decisions of the Security Council of obligatory character.

[56] In my opinion such a construction of Article 25 of the Charter and, in general, the obligatory character of a recommendation under Article 36 (3) of the Charter, is inadmissible.

[57] The term "recommendation" as used by the Charter is by no means a new one. It appeared especially in the Covenant of the League of Nations. The voluntary and not obligatory character of a recommendation made by the Council of the League, even unanimously, was expressly defined in Advisory Opinion No. 12 of the Permanent Court (pp. 27-28). The recommendations put forward by the Assembly of the League were called in French [p34] "les vœux" (see Albanian document, Annex No. 2). All commentators on the work of the League of Nations agree that there was no obligatory force (see Lauterpacht, M. Ray).

[58] The term "to recommend" was described by a distinguished Frenchman as follows: "ce n'est pas proposer, c'est encore moins ordonner, ce n'est pas indiquer. C'est faire une recommandation dans le sens français du mot, mais un peu pressante...." (Doyen Larnaude, p. 37 de la publication: La Société des Nations, Paris, 1920.) The meaning thus attached to the word "recommendation" does not permit it to be regarded as an obligatory decision. Moreover, the Covenant distinguished between a "decision" (Article 5 of the Covenant) and a "recommendation" (see, for instance, Article 15), and the Charter of the United Nations also makes a distinction (see Articles 39, 40, "Security Council shall make recommendations or decide what measures....", Article 94, paragraph 2, of the Charter).

[59] The Albanian documents (see especially Annexes 1,4, 5, 6, 7) submitted to the Court some evidence of a general consensus of opinion prevailing as regards the voluntary character of recommendations made under Chapter VI of the Charter. More documentary evidence could easily be found. I would recall only that the official British commentary on the Charter (H.M. Stationery Office, Cmd. 6666, p. 8) makes no mention of any compulsory character attaching to Chapter VI of the Charter.

[60] Some authoritative statements were made already during the San Francisco Conference concerning the voluntary character of recommendations (see Belgian amendment in this connexion as reproduced in Vol. XII, p. 66, of the official edition of the San Francisco Conference, and in the same sense also Vol. XI, p. 84). Some documentary evidence directly concerns the voluntary character of Article 36 (3) of the Charter (see op. cit., Vol. XII, pp. 108-109,p. 137).

[61] The travaux préparatoires of the San Francisco Conference establish also that Article 25 of the Charter must not be applied indifferently as meaning ipso facto "obligatory decisions". Referring to the Belgian amendment, it was emphasized at the Conference "that the Charter must be construed in its entirety" and that "there were special provisions which would override general provisions" (op. cit., Vol. XI, p. 375). The British representatives contended that Article 25 would have no sense and efficiency if the recommendations made under Chapter VI of the Charter were not obligatory decisions. They overlooked that Chapter VII of the Charter is of the greatest importance in view of the functions of the Security Council, and that the specific powers granted the Security Council as laid down in Chapter VII include the power to take [p35] decisions which are obligatory and must be carried out by members.

[62] The character of recommendations made by the Security Council under Chapter VI of the Charter being purely voluntary, it is evident also that the recommendation, addressed under Article 36 {3) of the Charter by the Security Council to the Governments of the United Kingdom and Albania on 9th April, 1947, could not involve any obligation for both Governments to go before the Court and that no question whatsoever of the compulsory jurisdiction of the Court can be raised in the present case in virtue of Article 36 (3) or any other article of the Charter.

[63] II. The foregoing point must be considered as of special importance in view of the question of the admissibility of the British Application of 13th May.

[64] According to Article 40 (1) of the Statute, “ cases are brought before the Court, as the case may be, either by the notification of the special agreement, or by written application". There was no question whatsoever of a special agreement between the Governments of Albania and of the United Kingdom, not even if the term special agreement should be construed as a concluding fact or in some other non-formal way. The United Kingdom Government was therefore by no means in a position to notify the Court of an agreement reached with Albania to bring the case before the Court. Was then the United Kingdom Government justified in bringing the case before the Court by means of a "written application"? Article 40 of the Statute does not itself say expressly which is the case for application. But it should not be difficult to understand that this is the procedure where there is compulsory jurisdiction. There cannot be any doubt that "the notification of the special agreement" which Article 40 (1) of the Statute has in view, covers the cases of voluntary, optional jurisdiction. In the terms of Article 36 (1) of the Statute, there are "all cases which the parties refer to the Court". The compulsory jurisdiction of the Court is another part of its jurisdiction. In the words of Article 36 (1) of the Statute, under this jurisdiction fall ".... all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force". The notification of the special agreement covering, according to Article 40 of the Statute, the cases of optional jurisdiction, the application, requéte, appears necessarily to be the formal instrument to bring before the Court the matters of compulsory jurisdiction.

[65] In my opinion, there was never any serious doubt on this point. The travaux préparatoires in connexion with Article 40 of the Statute point out that the words "as the case may be" (selon le [p36] cas) were intended to cover the following two cases: 1) "la Cour est saisie unilatéralement par une des parties ; 2) il y a un accord spécial entre les parties" (cf. p. 368, Procès-verbaux des Séances de la Troisième Commission, Première Assemblée, S. d. N.). The documents submitted on behalf of the Albanian Government to the Court include under Annex 12 the opinions of some judges of the Permanent Court and of the Registrar which, in 1926, confirm that "the Court on the basis of Article 40 of the Statute, had always called requête the document instituting proceedings filed by a party which claimed that the Court had compulsory jurisdiction in regard to the subject of a dispute ; the corresponding word in English had been 'application' ". (Permanent Court, Series D., Add. 2, pp. 177 et sqq.) It was always so held by the Permanent Court, as e.g. the Revision of the Rules 1934-1936 passim confirms.

[66] In spite of the documentary evidence in this sense, all this is, according to the judgment, only "a mere assertion which is not justified" either by Article 40 (1) or Article 36 (1) of the Statute. According to the judgment, Article 32 (2) of the Rules of Court, which contains the phrase "as far as possible", "clearly implies both by its actual terms and by the consideration which inspired its framing, that the institution of proceedings by application is not exclusively reserved for the domain of compulsory jurisdiction". In my opinion, Article 32 (2) of the Rules cannot be considered as supporting such a view. The ratio legis of this provision as concerns the words "as far as possible", was to make possible the institution of the forum prorogatum ; this was the reason why it was thought not desirable to insist on the application containing reference to the treaty clause upon which it was based. (See among the Albanian documents submitted to the Court Annex 14, especially pp. 69, 157, of the Publications of the Permanent Court. Series D., Third Addendum to No. 2.) The fact that the application should, as far as possible, specify the provision on which the applicant founds the jurisdiction of the Court, is not sufficient in itself to decide the question of the admissibility or inadmissibility of the application. Article 32 (2) prescribes all formal points which an application either must or should contain. It does not say that an application which does not specify the provision presumably founding the jurisdiction of the Court, is inadmissible ; on the other hand, it does not follow from Article 32 (2) of the Rules that the application which thus specifies the presumed jurisdiction of the Court, is ipso facto admissible. To decide the question, whether a case has been duly brought before the Court, Article 40 (1) of the Statute must be taken into consideration. Only if this Article did not specify that "cases are brought before the Court, as the case may be" (selon le cas), would it be possible to assert that an application can be presented to the Court even in a case of optional jurisdiction. [p37]

[67] Since cases of compulsory jurisdiction are brought before the Court, according to Article 40 of the Statute, by means of an application, the point is made that the British application of 13th May, 1947, was prima facie irregular.

[68] III. The only way which was open to the Government of the United Kingdom was to submit the dispute to the Court in agreement with Albania, unless the Albanian Government gave its consent to the application a posteriori. I will mention this point later on, in connexion with the letter of 2nd July.

[69] It is to be presumed that the Resolution of the Security Council of April 9th must be in harmony with the above-mentioned requirements of Article 40 of the Statute, since a recommendation of the Security Council under Article 36 (3) of the Charter cannot deviate from the terms of the Statute of the Court.

[70] Now the Resolution of April 9th recommends the Governments of the United Kingdom and Albania to submit their dispute to the Court "in accordance with the provisions of the Statute of the Court". It is easily understood that the recommendation could not propose to the said Governments any procedure other than the only valid procedure, i.e. "in accordance with the Statute". The recommendation of April 9th necessarily again confronts both Governments with Article 40 of the Statute and points to the "notification of the special agreement" as being the only way in which the dispute can be brought before the Court, there being no provision of compulsory jurisdiction upon which either the United Kingdom or Albania could rely.

[71] As proceedings could not be instituted before the Court by unilateral application, the acceptance of the recommendation by the Albanian Government in the letter of July 2nd could not, and did not, by itself in any way affect the position regarding the admissibility of the British Application of May 13th.

[72] It should also be evident that the acceptance of the recommendation by the Albanian Government on July 2nd did not by itself implement the recommendation. The Governments of Albania and the United Kingdom having both accepted the recommendation of April 9th, are from now on bound to submit the dispute to the Court "according to the provisions of the Statute". A pactum de contrahendo is established between them from now on to bring the dispute before the Court by appropriate means; but the dispute is not yet brought before the Court by these reciprocal promises. A dictum of Lord Phillimore of 1920, which concerns Articles 13 and 14 of the Covenant, is to be found: ".... a clear distinction should be drawn between the duty one has to submit a case to the Court and the means by which this submission should be carried out : Article 13 establishes the obligation of submitting disputes. Article 14 states—here he [p38] based his argument on the English text—that the consent of both parties is necessary before the case can be dealt with." The dictum of Lord Phillimore can be applied exactly to the present case. The recommendation of April 9th establishes the obligation of the United Kingdom and Albania to submit their dispute to the Court "according" to the provisions of the Statute of the Court", i.e. according to its Article 40, the consent of both parties being necessary before the case can be dealt with by the Court.

[73] In this connexion, the term "by the parties" which occurs in Article 36 (3) of the Charter, should also be mentioned. It was the Norwegian amendment which brought these words into Article 36 (3), and the documentary evidence of the San Francisco Conference shows that it was done "in order to make it perfectly clear that the Security Council had no right or duty to refer justiciable disputes to the Court." (Op cit., Vol. XII, p. 137.)

[74] The point was made, on behalf of the Albanian Government, that the term "the parties" does not imply the right of one party to summon another to appear before the Court, but "that the consent of both parties is necessary before a case can be taken before the Court" (see Lord Phillimore in Annex 2 of the Albanian document). The phrase in Article 36 (3) of the Charter "according to the Statute" on the one hand, and the phrase "by the parties", on the other hand, are in perfect harmony and mutually complementary.

[75] The consent of the parties to the dispute which is necessary in order correctly to implement the recommendation and to bring the case before the Court in conformity with Article 40 of the Statute, may be reached and expressed in a different way. As the Permanent Court stated in Judgment No. 12 : "The acceptance by a State of the Court's jurisdiction in a particular case is not, under the Statute, subordinated to the observance of certain forms, such as, for instance, the previous conclusion of a special agreement." (P. 23, l. c.) On the other hand, there cannot be any doubt that the consent of the parties to the dispute must be obtained and expressed with necessary precision.

[76] IV. It is from this point of view that, in my opinion, the Albanian letter of July 2nd, 1947, should be read.

[77] First, I must point out that it is necessary to make a clear difference between two notions :

1. Ability to appear before the Court;
2. Competence of the Court.

[78] Ability to appear before the Court depends on the fulfilment of two conditions: (a) only States (Article 34 (1) of the Statute) and not other juridical nor physical persons may appear before [p39] the Court; (b) such States must be parties to the Statute, i.e., must accept the jurisdiction of the Court.

[79] According to Article 35 (1) of the Statute, "the Court shall be open" to these States.

[80] Other States which—because they are not parties to the Statute—have not accepted the jurisdiction of the Court, are not admitted to appear before the Court. In order to render it possible for States which are not parties to the Statute also to be admitted to appear before the Court, Article 35 (2) of the Statute lays down that any such State will acquire the ability to do so on condition (in conformity with the Resolution of the Security Council of October 15th, 1946) that it accepts the jurisdiction of the Court. Such a declaration should be made at the moment of the notification of its Agent (Article 36 of the Rules).

[81] Accordingly, for every State which is not a party to the Statute, the acceptance of the jurisdiction of the Court is a preliminary condition to be able to appear before the Court. Such a State acquires by this declaration all rights and is subject to all obligations, which, in the case of parties to the Statute derive from the Statute and Rules because they are parties to the Statute. As, in conformity with Article 62 of the Rules, parties to the Statute have the right to present any preliminary objection, this right also belongs to States not parties to the Statute as soon as they have accepted the jurisdiction of the Court. Were it not so, then the fundamental principle of the full equality of the parties would be violated.

[82] In my opinion, the word "jurisdiction" has two fundamental meanings in international law. This word is used :

(1) to recognize the Court as an organ instituted for the purpose jus dicere and in order to acquire the ability to appear before it ;
(2) to determine the competence of the Court, i.e., to invest the Court with the right to solve concrete cases.

[83] In the first meaning, the word jurisdiction has been used in the Protocol of Signature of December 16th, 1920. By this Protocol, the States, accepted "the jurisdiction of the Court", but nobody has ever been of the opinion that this should be construed as acceptance of the compulsory jurisdiction of the Court for a concrete case. With the same meaning, the word jurisdiction has been used in the Resolution of the Council of the League of Nations of May 17th, 1922, as well as in the Resolution of the Security Council of October 15th, 1946. According to these resolutions, the acceptance of the jurisdiction of the Court is a preliminary condition to be able to appear before the Court. By this act (declaration), the competence of the Court is not of course yet established. The condition for the establish-[p40] ment of the competence of the Court is a special agreement (compromis) or the acceptance of the compulsory jurisdiction in treaties or conventions (Article 36 (1) and 36 (2) of the Statute). Accordingly, a State not a party to the Statute which recognizes the jurisdiction of the Court by this fact acquires the juridical position of all other States parties to the Statute. In particular, such a State has the right to present a preliminary objection on the ground of "the inadmissibility of the application", because the recognition of the jurisdiction, in order to acquire ability to appear before the Court, does not involve ipso facto recognition of the Court's competence.

[84] It is true that, according to my opinion, it may happen that a State which makes a declaration in conformity with the Resolution of the Security Council of October 15th, 1946, is either directly cited by an application (requête) or itself directly cites another State which recognizes the jurisdiction of the Court, in spite of the fact that this had not yet been established. But it is evident that in such a case, the cited party can successfully present a preliminary objection to the competence of the Court. On the other hand, such a State cited by means of an application which is not valid can either expressly confer validity on the application by accepting the competence or simply argue the merits of the case without raising any objection. In both cases (the acceptance expressis verbis or tacit) the competence will be established and the written application will be made valid.

[85] But this validity does not derive from the recognition of the jurisdiction (which for a State not a party to the Statute is a preliminary condition to appear before the Court), but on the contrary, the competence is established by the fact that a State has expressly made valid the written application, or has commenced the argument of the case on the merits without raising any objection.

[86] The letter of July 2nd appears, in the light of these considerations, as a recognition of the jurisdiction of the Court for the purpose of enabling Albania to appear before it (se présenter devant la Cour).

[87] As the Albanian Government at the same time have made "the most explicit reservations respecting the manner in which the Government of the United Kingdom has brought the case before the Court", it is evident that by these reservations this Government have retained the right to oppose the "admissibility" of the written application within the time fixed by Article 62 of the Rules of Court.

[88] The Albanian Government had pointed out that it "would be within its rights in holding that the Government of the United Kingdom was not entitled to bring the case before the Court by unilateral application". This sentence is to be found at the end of the third paragraph of the above-mentioned letter. The first [p41] three paragraphs briefly indicate the meaning of the Resolution of the Security Council of April 9th and the means by which the dispute should have been brought before the Court in conformity with this Resolution. In the opinion of the Albanian Government a special agreement was clearly necessary for this purpose.

[89] As a consequence of the reasons given in the first three paragraphs, the Albanian Government declares that it "would be within its rights....", etc. The explanation of these words is very clear and simple : the Albanian Government would have been able to proceed, as if the written application had not been made, i.e., this Government would have been able completely to ignore it and not to appear before the Court. By this sentence the Albanian Government evidently desired to point out its potential right not to take into consideration the British application which it considered null and void. The conditional mood was rightly used in that sentence to express this attitude on the part of the Albanian Government, because the conditional is the only grammatical form which expresses a possibility. Such a possibility really existed on July 2nd for the Albanian Government, but that Government did not use its right completely to ignore a null and void application.

[90] Let us examine why Albania, in spite of its right to ignore the application, agreed to appear before the Court. As a small country of scarcely a million inhabitants, Albania could not, by its refusal, adopt a position which might have been easily adopted by a great Power, such as England for instance, in a similar case. Moreover, in the eyes of the world, Albania has hitherto been considered (wrongly of course) as one of the countries of the Balkans, so often described as the "powder-keg" of Europe. Its refusal to appear before the Court would have contributed to confirm this unfounded reputation as a backward country which refused to recognize the institutions of the civilized world by an act which might have been interpreted as involving contempt of Court. In such circumstances, therefore, Albania chose not to invoke its right, as a great Power might easily have done without incurring the criticism of the world, and agreed to appear before the Court.

[91] Therefore it decided to appear before the Court in spite of this irregularity; but it reserved to itself the right to present the preliminary objection against the irregularity of the United Kingdom's Application. The Albanian Government has exercised this right so reserved within the time fixed by Article 62 of the Rules.

[92] In order to avail itself of its reservations, i.e., in order to be able to present the preliminary objection to the Court, Albania [p42] had first to appear before the Court, that is to say it had to accept the jurisdiction of the Court. As pointed out above, it is evident that a State not a party to the Statute cannot appear before the Court without having previously made such a declaration. In the present case, taking into consideration the whole contents of the letter of July 2nd and especially the explicit reservations of the Albanian Government, the recognition of the jurisdiction of the Court is for the purpose of enabling it "to appear before the Court".

[93] The recognition of the jurisdiction of the Court consequently confers ability to be a party in the present case and thereby enables effect to be given to the declaration: "is prepared .... to appear before the Court".

[94] As the Albanian Government would have had the right to ignore the United Kingdom Application, but decided to appear before the Court, in spite of the irregularity of this Application, and to attack this irregularity before the Court, it considered it necessary to point out that its recognition of the jurisdiction of the Court "cannot constitute a precedent for the future". This in effect means that the Albanian Government reserved the right not to reply, to ignore completely any identical or similar written applications, which in future might be directed against her.

[95] I do not find any other meaning in the letter of July 2nd than that which I have tried to define, being anxious to avoid any interpretation which would conflict with the facts.

[96] V. Since the judgment places such importance on the interpretation of the letter and the reservations contained therein, I shall now examine these reservations in greater detail.

[97] According to the judgment, it is the letter of the Albanian Government of July 2nd, 1947, which removes all difficulties, both regarding the question of the admissibility of the Application and the question of the Court's jurisdiction.

[98] The judgment gives on page 28 its explanation why this is the case "in spite of the reservations stated" in the letter of July 2nd. The judgment examines here "the scope of the reservations". In its view, "this reservation is the only limit set by the Albanian Government either to its acceptance of the Court's jurisdiction, or to its abandonment of any objection to the admissibility of the proceedings". And the judgment holds the following opinion concerning this reservation: "It is clear that the reservation contained in the letter is intended only to maintain a principle and to prevent the establishment of a precedent as regards the future." The conclusion is: "The reservation in the letter of July 2nd, 1947, therefore does not enable Albania to raise a preliminary objection based on an irregularity of procedure, or to dispute thereafter the Court's jurisdiction on the merits." [p43]

[99] In my view, the judgment passes over this important question of the reservation in a more than summary and very incomplete way.

[100] The reservation is expressed in a special sentence and in the present tense of the indicative mood: "the Albanian Government makes .... reservations". The sentence immediately follows the declaration also expressed in the present tense of the indicative mood that the Albanian Government "is prepared, notwithstanding this irregularity in the action by the Government of the United Kingdom, to appear before the Court". The reservation is immediately connected to this preceding sentence by the word "Nevertheless". A sentence starting with "Nevertheless" is surely not one standing by itself but presupposes a preceding one.

[101] Neither in the sentence containing the reservation or in the preceding one, is there any allusion whatsoever to a future case. Also there is not the slightest indication that the reservation which the Albanian Government makes, should not have its effect in the present case. The reader passes from the preceding phrase to the reservation without observing any difference in time in these two phrases. The Albanian Government is ready to go before the Court, "Nevertheless" at the same time it expresses some reservation.

[102] Such a grammatical and logical meaning of these sentences of the letter of July 2nd appears so natural that, in fact, the judgment cannot quote anything from them in support of its assertion that the reservation was meant only to apply to a new case in the future. It is only in the following phrase starting with the words "The Albanian Government wishes to emphasize...." that the judgment believes it finds the grounds for its interpretation.

[103] Now it happens that this, in the view of the judgment, "very important phrase beginning with the words 'The Albanian Government wishes to emphasize'.... " does not mention the reservation expressed in the preceding phrase, in any way. The whole phrase refers only to the "acceptance of the Court's jurisdiction in the present case" and says that it should not be considered in the future as a precedent. Manifestly the acceptance of the jurisdiction of the Court for the present case and a reservation expressed and concerning two special points of the case, are two different things. The phrase refers only to the acceptance of the jurisdiction of the Court for the present case and does not refer to the reservation.

[104] The question may also be raised whether there would have been any point in making the reservations which were formulated merely in view of a new case in the future. The reservations are made in respect of the Application of the United Kingdom of May 1947 concerning a concrete and unique case and in respect of definite special grounds put forward to support it, and the [p44] reservations cannot apply to any other case. In any other new-case, new reservations must necessarily be made, which must be formulated afresh as the new case may require.

[105] In this connexion, it must also be taken into consideration that the whole phrase beginning with the words "The Albanian Government wishes to emphasize...." does not contain any definite provision of law at all and is to be appreciated rather as a political and diplomatic declaration.

[106] The acceptance of the jurisdiction of the Court in one particular case, evidently cannot serve as a legal, binding precedent for any future case. Also the phrase follows the preceding phrase only as a sort of addendum.

[107] The conclusion is: if the reservation expressed in the letter of July 2nd is to have any meaning, it must not be considered in the light of another phrase referring to a new case in the future, but rather in its proper place and context and with due regard to its purpose in the present case.

[108] The final phrase of paragraph 3 of the letter of July 2nd beginning with the words "In these circumstances, the Albanian Government would be within its rights...." does not weaken in any way the reservation under discussion and expressed later in paragraph 4 of the letter.

[109] It is agreed that the United Kingdom Application of May 13th could be made valid by means of consent to it given by the Albanian Government, even a posteriori. The judgment expresses the opinion that the letter of July 2nd declared such an intention of the Albanian Government. The judgment quotes, on this point, the phrase of the letter "The Albanian Government would be within its rights" and the phrase "it is prepared, notwithstanding this irregularity...." and comes to the conclusion: "This language used by the Albanian Government cannot be understood otherwise than as a waiver of the right subsequently to raise an objection directed against the admissibility of the Application founded on the alleged procedural irregularity of that instrument."

[110] It is evident that such a conclusion is made possible only by a complete disregard of the reservation expressed in the letter of July 2nd. As soon as the reservation is recognized as operative in the present case, the Application cannot be considered as validated. The reservation is made in order to limit the acceptance of the jurisdiction of the Court by the Albanian Government and it excludes a forum prorogatum on the basis of an irregular application, which was not subsequently made valid.

[111] To the foregoing observations, I wish to add only the following: In view of my reading of the letter of July 2nd, I was not obliged to make use of the rules of interpretation in dubio stricto sensu [p45],etc., the rules which should undoubtedly be applied, if necessary, in the present case. On the other hand, it would be well for the majority of the Court to read and interpret the letter of July 2nd stricto sensu. But it is sufficiently manifest that these rules of interpretation were not applied.

Conclusion:

[112] As, according to my opinion, the British written Application was irregular ab initio, and as the Albanian Government has not either expressis verbis or tacitly done anything to make the application valid, I consider that the Court for the time being is not competent to judge the merits and that the preliminary objection should have been upheld.

(Signed) Dr. Daxner.

 
     

 

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