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[p5]
THE COURT,
composed as above,
delivers the following judgment:
[1] By a Judgment delivered on March 25th, 1948 (I.C.J. Reports 1947-1948,
p. 15), in the Corfu Channel case, in proceedings instituted on May 22nd,
1947, by an application of the Government of the United Kingdom of Great
Britain and Northern Ireland against the Government of the People's Republic
of Albania, the Court gave its decision [p6] on the Preliminary Objection
filed on December 9th, 1947, by the latter Government. The Court rejected
the Objection and decided that proceedings on the merits should continue,
and fixed the time-limits for the filing of subsequent pleadings as follows:
for the Counter-Memorial of Albania: June 15th, 1948; for the Reply of the
United Kingdom: August 2nd, 1948; for the Rejoinder of Albania: September
20th, 1948.
[2] Immediately after the delivery of the judgment, the Court was notified
by the Agents of the Parties of a Special Agreement, which is as follows:
"The Government of the People's Republic of Albania, represented by their
Agent Mr. Kahreman Ylli, Envoy Extraordinary and Minister Plenipotentiary of
Albania at Paris; and
the Government of the United Kingdom of Great Britain and Northern Ireland,
represented by their Agent, Mr. W. E. Beckett, C.M.G., K.C., Legal Adviser
to the Foreign Office;
Have accepted the present Special Agreement, which has been drawn up as a
result of the Resolution of the Security Council of the 9th April, 1947, for
the purpose of submitting to tht International Court of Justice for decision
the following questions:
(1) Is Albania responsible under international law for the explosions which
occurred on the 22nd October 1946 in Albanian waters and for the damage and
loss of human life which resulted from them and is there any duty to pay
compensation?
(2) Has the United Kingdom under international law violated the sovereignty
of the Albanian People's Republic by reason of the acts of the Royal Navy in
Albanian waters on the 22nd October and on the 12th and 13th November 1946
and is there any duty to give satisfaction?
The Parties agree that the present Special Agreement shall be notified to
the International Court of Justice immediately after the delivery on the
25th March of its judgment on the question of jurisdiction. The Parties
request the Court, having regard to the present Special Agreement, to make
such orders with regard to procedure, in conformity with the Statute and the
Rules of the Court, as the Court may deem fit, after having consulted the
Agents of the Parties.
In witness whereof the above-mentioned Agents, being duly authorized by
their Governments to this effect, have signed the present Special Agreement.
Done this 25th day of March, 1948, at midday, at The Hague, in English and
French. both texts being equally authentic, in a single copy which shall be
deposited with the International Court of Justice."
[3] On March 26th, 1948 (I.C.J. Reports 1947-1948, p. 53), the Court made an
Order in which it placed on record that the Special [p7] Agreement now
formed the basis of further proceedings before the Court, and stated the
questions submitted to it for decision. The Court noted that the United
Kingdom Government on October 1st, 1947, that is within the time-limit fixed
by the Court, had filed a Memorial with statements and submissions relating
to the incident that occured on October 22nd 1946. It further noted that the
Agents, having been consulted, declared that they agreed in requesting that
the order and time-limits for the filing of the subsequent pleadings as
fixed by the Judgment of March 9th, 1948, be maintained. The Court confirmed
this order and these time-limits.
[4] The Counter-Memorial, reply and Rejoinder were filed within these
limits. The case was thus ready for hearing on September 20th, 1948, and the
commencement of the oral proceedings was then fixed for November 5th, 1948.
[5] As the Court did not include upon the Bench a judge of Albanian
nationality, the Albanian Government availed itself during the proceedings
on the Preliminary Objection of the right provided by Article 31, paragraph
2, of the Statute, and chose M. Igor Daxner, Doctor of Law, President of a
Chamber of the Supreme Court of Czechoslovakia, as Judge ad hoc. On October
28th, 1948, the Registrar was informed that Judge Daxner was prevented by
reasons of health from sitting on the date fixed. The Court decided on
November 2nd, 1948, to fix a time-limit expiring on November 7th, within
which the Albanian Government might notify the name of the person whom it
wished to choose as Judge ad hoc in place of Dr. Daxner, and to postpone the
opening of the hearing until November 9th. Within the time fixed the
Albanian Government designated M. Bohuslav Ecer, Doctor of Law and Professor
in the Faculty of Law at Brno, and delegate of the Czechoslovak Government
to the International Military Tribunal at Nuremberg.
[6] Public sittings were held by the Court on the following dates: November,
1948, 9th to 12th, 15th to 19th, 22nd to 26th, 28th and 29th; December,
1948, 1st to 4th, 6th to 11th, 13th, 14th and 17th; January, 1949, 17th to
22nd. In the course of the sittings from November 9th to 19th, 1948, and
from January 17th to 22nd, 1949, the Court heard arguments by Sir Hartley
Shawcross, K.C., Counsel, Sir Eric Beckett, K.C., Agent and Counsel, and Sir
Frank Soskice, KC., Counsel, on behalf of the United Kingdom; and by M.
Kahreman Ylli, Agent, and MM. J. Nordmann and Pierre Cot, Counsel, on behalf
of Albania. In the course of the sittings from November 22nd to December
14th, 1948, the Court heard the evidence of the witnesses and experts called
by each of the Parties in reply to questions put to them in examination and
cross-examination on behalf of the Parties, and by the President on behalf
of the Court or by a Member of the Court. The following persons gave
evidence: [p8]
[7] Called by the United Kingdom:
Commander E. R. D. Sworder, O.B.E., D.S.C., Royal Naval Volunteer Reserve,
as witness and expert;
Karel Kovacic, former Lieutenant-Commander in the Yugoslav Navy, as witness;
Captain W. H. Selby, D.S.C., Royal Navy, as witness;
Commander R. T. Paul, C.B.E., Royal Navy, as witness;
Lieutenant-Commander P. K. Lankester, Royal Navy, as witness and expert;
Commander R. Mestre, French Navy, as-witness;
Commander Q. P. Whitford, O.B.E., Royal Navy, as witness and expert;
[8] Called by Albania:
Captain Ali Shtino, Albanian Army, as witness;
First Captain Aquile Pdena, Albanian Army, as witness;
Xhavit Muqo, former Vice-president of the Executive Committee of Saranda, as
witness;
Captain B. I. Ormanov, Bulgarian Navy, as expert;
Rear-Admiral Raymond Moullec, French Navy, as expert
[9] Documents, including maps, photographs and sketches, were filed by both
Parties, and on one occasion by the Parties jointly, both as anneexes to the
pleadings, and after the close of the written proceedings. On one occasion
during the sittings when a photostat of an extract 'from a document was
submitted, the Court, on November 24th, 1948, made a decision in which it
reminded both Parties of the provisions of Article 48 and Article 43,
paragraph I, of the Rules of Court; held that the document in question could
be received only if it were presented in an original and complete form;
ordered that all documents which the Parties intended to use should
previously be filed in the Registry; and reserved the right to inform the
Parties later which of these documents should be presented in an original,
and which in certified true copy, form.
[10] Another decision as to the production of a series of new documents was
given by the Court on December 10th, 1948. This decision noted that the
Parties were agreed as to the production of certain of these documents and
that certain others were withdrawn; authorized the production of certain
other documents; lastly, in the case of one of these documents, the
examination [p9] of which had been subjected to certain conditions, the
Court's decision placed on record the consent of the other Party to its
production and, in view of that consent, permitted its production, having
regard to the special circumstances; but the Court expressly stated that
this permission could not form a precedent for the future. [FN1]
----------------------------------------------------------------------------------------------------------------
[FN1] The list of documents in support produced by the Parties and accepted
by the Court will be found in Annex I to this Judgment.
----------------------------------------------------------------------------------------------------------------
[11] By an Order of December 17th, 1948, the Court, having regard to the
fact that certain points had been contested between the Parties which made
it necessary to obtain an expert opinion, defined these points, and
entrusted the duty of giving the expert opinion to a Committee composed of
Commodore J. Bull of the Royal Korwegian Navy, Commodore S. A. Forshell of
the Royal Swedish Kavy, and, Lieutenant-Commander S. J. w. Elfferich of the
Royal Netherlands Navy. These Experts elected Commodore Bull as their
chairman, and filed their Report on January 8th, 1949, within the prescribed
time-limit. By a decision read at a public sitting on January 17th, the
Court requested the Experts to proceed to Sibenik in Yugoslavia and Saranda
in Albania and to make on the land and in the waters adjacent to these
places any investigations and experiments that they might consider useful
with a view to verifying, completing, and, if necessary, modifying the
answers given in their report of January 8th. The Experts' second report --
in which Commodore Bull did not join, having been unable to make the journey
for reasons of health -- was filed on February 8th, 1949. On February 10th,
three members of the Court put questions to the Experts, to which the
Experts replied on February 12th.
[12] At sittings held from January 17th to 22nd, 1949, the representatives
of the Parties had an opportunity of commenting orally on the Experts'
report of January 8th. They also filed written observations [FN2] concerning
the further statements contained in the Report of February 8th and the
replies of February 12th, as provided in the Court's decision of January
17th.
----------------------------------------------------------------------------------------------------------------
[FN2] See Annex 2 for the Experts' Report of January 8th, the Court's
decision of January 17th, the Experts' second Report of February 8th, the
questions put by three members of the Court, and the Experts' replies of
February 12th.
----------------------------------------------------------------------------------------------------------------
[13] The Parties' submissions, as formulated by their Agents or Counsel at
the end of the hearings on the 18th, 19th, 21st and 22nd January, 1949, are
as follows:
Question (I) of the Special Agreement.
[14] On behalf of the United Kingdom:
"The Government of the United Kingdom asks the Court in this case to adjudge
and declare as follows: [p10]
(1) That, on October 22nd, 1946, damage was caused to His Majesty's ships
Saumarez and Volage, which resulted in the death and injuries of 44, and
personal injuries to 42, British officers and men by a minefield of anchored
automatic mines in the international highway of the Corfu Strait in an area
south-west of the Bay of Saranda;
(2) That the aforesaid minefield was laid between May 15th and October 22nd,
1946, by or with the connivance or knowledge of the Albanian Government;
(3) That (alternatively to 2) the Albanian Government knew that the said
minefield was lying in a part of its territorial waters;
(4) That the Albanian Government did not notify the existence of these mines
as required by the Hague Convention VIII of I907 in accordance with the
general principles of international law and humanity;
(5) That in addition, and as an aggravation of the conduct of Albania as set
forth in Conclusions (3) and (4). the Albanian Government, or its agents,
knowing that His Majesty's ships were going to make the passage through the
North Corfu swept channel, and being in a position to observe their
approach, and having omitted, as alleged in paragraph 4 of these
conclusions, to notify the existence of the said mines, failed to warn His
Majesty's ships of the danger of the said mines of which the Albanian
Government or its agents were well aware;
(6) That in addition, and as a further aggravation of the conduct of Albania
as set forth in Conclusions (3), (4), and (5), the permission of the
existence without notification of the minefield in the North Corfu Channel,
being an international highway, was a violation of the right of innocent
passage which exists in favour of foreign vessels (whether warships or
merchant ships) through such an international highway;
(7) That the passage of His Majesty's ships through the North Corfu Channel
on October 22nd, 1946, was an exercise of the right of innocent passage,
according to the law and practice of civilized nations;
(8) That even if, for any reason, it is held that conclusion (7) is not
established, nevertheless, the Albanian Government is not thereby relieved
of its international responsibility for the damage caused to the ships by
reason of the existence of an unnotified minefield of which it had
knowledge;
(9) That in the circumstances set forth in the Memorial as summarized in the
preceding paragraphs of these Conclusions, the Albanian Government has
committed a breach of its obligations under international law, and is
internationally responsible to His Majesty's Government in the United
Kingdom for the deaths, injuries and damage caused to His Majesty's ships
and personnel, as set out more particularly in paragraph 18of the Memorial
and the Annexes thereto; [p11]
(10) That the Albanian Government is under an obligation to the Government
of the United Kingdom to make reparation in respect of the breach of its
international obligations as afore-said;
(11) That His Majesty's Government in the United Kingdom has as a result of
the breach by the Albanian Government of its obligations under international
law, sustained the following damage:
Damage to H.M.S. Saurmrez … £ 750,000
Damage to H.M.S. Volage … J 75,000
Compensation for the pensions and other expenses incurred by the Government
of the United Kingdom in respect of the deaths and injuries of naval
personnel … J 50,000
£ 875,000”
[15] On behalf of the Albanian Government:
[Translation.]
"(1) Under the terms of the Special Agreement of March 25th, 1948, the
following question has been submitted to the International Court of Justice:
'Is Albania responsible under international law for the explosions which
occurred on the 22nd October 1946 in Albanian waters and for the damage and
loss of human life which resulted from them and is there any duty to pay
compensation?'
The Court would not have jurisdiction, in virtue of this Special Agreement,
to decide, if the case arose, on the claim for the assessment of the
compensation set out in the submissions of the United Kingdom Government.
(2) It has not been proved that the mines which caused the accidents of
October 22nd, 1946, were laid by Albania.
(3) It has not been proved that these mines were laid by a third Power on
behalf of Albania.
(4) It has not been proved that these mines were laid with the help or
acquiescence of Albania.
(5) It has not been proved that Albania knew, before the incidents of
October 22nd, 1946, that these mines were in her territorial waters.
(6) Consequently, Albania cannot be declared responsible, under
international law, for the explosions which occurred on October 22nd, 1946,
in Albanian waters, and for the damage and loss of human life which resulted
from them. Albania owes no compensation to the United Kingdom Government."
Question (2) of the Special Agreement.
[16] On behalf of the Albanian Government:
[Translation.]
"(1) Under the terms of the Special Agreement concluded on March 25th, 1948,
the International Court of Justice has before it the following question:
[p12]
'Has the United Kingdom under international law violated the sovereignty of
the Albanian People's Republic by reason of the acts of the Royal Navy in
Albanian waters on the 22nd October and on the 12th and 13th November 1946,
and is there any duty to give satisfaction?'
(2) The coastal State is entitled, in exceptional circumstances, to regulate
the passage of foreign warships through its territorial waters.
(3) This rule is applicable to the North Corfu Channel.
(4) In October and November, 1946, there existed, in this area, exceptional
circumstances which gave the Albanian Government the right to require that
foreign warships should obtain previous authorization before passing through
its territorial waters.
(5) The passage of several British warships through Albanian territorial
waters on October 22nd, 1946, without previous authorization, constituted a
breach of international law.
(6) In any case that passage was not of an innocent character.
(7) The British naval authorities were not entitled to proceed, on November
12th and 13th, 1946, to sweep mines in Albanian territorial waters without
the previous consent of the Albanian authorities.
(8) The Court should find that, on both these occasions, the Government of
the United Kingdom of Great Britain and Northern Ireland committed a breach
of the rules of international law and that the Albanian Government has a
right to demand that it should give satisfaction therefor."
[17] On behalf of the United Kingdom Government:
"I ask the Court to decide that on neither head of the, counterclaim has
Albania made out her case, and that there is no ground for the Court to
award nominal damages of one farthing or one franc."
***
[18] By the first part of the Special Agreement, the following question is
submitted to the Court:
"(1) Is Albania responsible under international law for the explosions which
occurred on the 22nd October 1946 in Albanian waters and for the damage and
loss of human life which resulted from them and is there any duty to pay
compensation?"
[19] On October 22nd, 1946, a squadron of British warships, the cruisers
Mauritius and Leander and the destroyers Saumarez and Volage, left the port
of Corfu and proceeded northward through a channel previously swept for
mines in the North Corfu Strait. The cruiser Mauritius was leading, followed
by the destroyer Saumarez; at a certain distance thereafter came the cruiser
Leander followed by the destroyer Volage. Outside the Bay of Saranda,
Saumarez struck; a mine and was heavily damaged. Volage was [p13] ordered to
give her assistance and to take her in tow. Whilst towing the damaged ship,
Volage struck a mine and was much damaged. Nevertheless, she succeeded in
towing the other ship back to Corfu.
[20] Three weeks later, on November 13th, the North Corfu Channel was swept
by British minesweepers and twenty-two moored mines were cut. Two mines were
taken to Malta for expert examination. During the minesweeping operation it
was thought that the mines were of the German GR type, but it was
subsequently established that they were of the German GY type.
[21] The Court will consider first whether the two explosions that occurred
on October 22nd, 1946, were caused by mines belonging to the minefield
discovered on November 13th.
[22] It was pointed out on behalf of the United Kingdom Government that this
minefield had been recently laid. This was disputed in the Albanian
pleadings but was no longer disputed during the hearing. One of the Albanian
Counsel expressly recognized that the minefield had been recently laid, and
the other Counsel subsequently made a similar declaration. It was further
asserted on behalf of the Albanian Government that the minefield must have
been laid after October 22nd; this would make it impossible at the same time
to maintain that the minefield was old. The documents produced by the United
Kingdom Government and the statements made by the Court's Experts and based
on these documents show that the minefield had been recently laid. This is
now established.
[23] The United Kingdom Government contended that the mines which struck the
two ships on October 22nd were part of this minefield.
[24] This was contested by the Albanian Government, which argued that these
mines may have been floating mines, coming from old minefields in the
vicinity, or magnetic ground mines, magnetic moored mines, or German GR
mines. It was also contested by them that the explosions occurred in the
previously swept channel at the place where the minefield was discovered.
The Albanian Government also contended that the minefield was laid after
October 22nd, between that date and the mine-sweeping operation on 12-13th
November.
[25] On the evidence produced, the Court finds that the following facts are
established:
[26] In October, 1944, the North Corfu Channel was swept by the British Navy
and no mines were found in the channel thus swept, whereupon the existence
of a safe route through the Channel was announced in November 1944. In
January and February, [p14] 1945, the Channel was check-swept by the British
Navy with negative results. That the British Admiralty must have considered
the Channel to be a safe route for navigation is shown by the fact that on
May 15th, 1946, it sent two British cruisers and on October 22nd a squadron
through the channel without any special measures of precaution against
danger from moored mines. It was in this swept channel that the minefield
was discovered on November 13th, 1946.
[27] It is further proved by evidence produced by the United Kingdom
Government that the mining of Saumarez and Volage occurred in Albanian
territorial waters, just at the place in the swept channel where the
minefield was found, as indicated on the chart forming Annex g to the United
Kingdom Memorial. This is confirmed by the Court's Experts, who consider it
to be free from any doubt that the two ships were mined in approximately the
position indicated on this chart.
[28] It is established by the evidence of witnesses that the minefield
consisted of moored contact mines of the German GY type. It is further shown
by the nature of the damage sustained by the two ships, and confirmed by
witnesses and experts, that it could not have been caused by floating mines,
magnetic ground mines, magnetic moored mines, or German GR mines. The
experts of the Court have stated that the nature of the damage excludes the
faintest possibility of its cause being a floating mine; nor could it have
been caused by a ground mine. They also expressed the view that the damage
must have been caused by the explosion of moored contact mines, each having
a charge of approximately 600 lbs. of explosives, and that the two ships
struck mines of the same type as those which were swept on November 13th,
1946.
[29] The Albanian Government put forward a suggestion that the minefield
discovered on November 13th may have been laid after October 22nd, so that
the explosions that occurred on this latter date would not have been caused
by mines from the field in question. But it brought no evidence in support
of this supposition. As it has been established that the explosions could
only have been due to moored mines having an explosive charge similar to
that contained in GY mines, there would, if the Albanian contention were
true, have been at least two mines of this nature in the channel outside the
Bay of Saranda, in spite of the sweep in October 1941 and the check-sweeps
in January and February 1945; and these mines would have been struck by the
two vessels at points fairly close to one another on October 22nd, 1946.
Such a supposition is too improbable to be accepted. [p15]
[30] The Court consequently finds that the following facts are established.
The two ships were mined in Albanian territorial waters in a previously
swept and check-swept channel just at the place where a newly laid minefield
consisting of moored contact German GY mines was discovered three weeks
later. The damage sustained by the ships was inconsistent with damage which
could have been caused by floating mines, magnetic ground mines, magnetic
moored mines, or German GR mines, but its nature and extent were such as
would be caused by mines of the type found in the minefield. In such
circumstances the Court arrives at the conclusion that the explosions were
due to mines belonging to that minefield.
***
[31] Such are the facts upon which the Court must, in order to reply to the
first question of the Special Agreement, give judgment as to Albania's
responsibility for the explosions on October 22nd, 1946, and for the damage
and loss of human life which resulted, and for the compensation, if any, due
in respect of such damage and loss.
[32] To begin with, the foundation for Albania's responsibility, as alleged
by the United Kingdom, must be considered. On this subject, the main
position of the United Kingdom is to be found in its submission No. 2: that
the minefield which caused the explosions was laid between May 15th, 1946,
and October 22nd, 1946, by or with the connivance or knowledge of the
Albanian Government.
[33] The Court considered first the various grounds for responsibility
alleged in this submission.
[34] In fact, although the United Kingdom Government never abandoned its
contention that Albania herself laid the mines, very little attempt was made
by the Government to demonstrate this point. In the written Reply, the
United Kingdom Government takes note of the Albanian Government's formal
statement that it did not lay the mines, and was not in a position to do so,
as Albania possessed no navy; and that, on the whole Albanian littoral, the
Albanian authorities only had a few launches and motor boats. In the light
of these statements, the Albanian Government was called upon, in the Reply,
to disclose the circumstances in which two Yugoslav war vessels, the Mljet
and the Meljine, carrying contact mines of the GY type, sailed southward
from the port of Sibenik on or about October 18th, and proceeded to the
Corfu Channel The United Kingdom Government, having thus indicated the
argument upon [p16] which it was thenceforth to concentrate, stated that it
proposed to show that the said warships, with the knowledge and connivance
of the Albanian Government, laid mines in the Corfu Channel just before
October 22nd, 1946. The facts were presented in the same light and in the
same language in the oral reply by counsel for the United Kingdom Government
at the sittings on January 17th and 18th, 1949.
[35] Although the suggestion that the minefield was laid by Albania was
repeated in the United Kingdom statement in Court on January 18th, 1949, and
in this final submissions read in Court on the same day, this suggestion was
in fact hardly put forward at that time except pro memoria, and no evidence
in support was furnished.
[36] In these circumstances, the Court need pay no further attention to this
matter.
[37] The Court now comes to the second alternative argument of the United
Kingdom Government, namely, that the minefield was laid with the connivance
of the Albanian Government. According to this argument, the minelaying
operation was carried out by two Yugoslav warships at a date prior to
October 22nd, but very near that date. This would imply collusion between
the Albanian and the Yugoslav Governments, consisting either of a request by
the Albanian Government to the Yugoslav Government for assistance, or of
acquiescence by the Albanian authorities in the laying of the mines.
[38] In proof of this collusion, the United Kingdom Government relied on the
evidence of Lieutenant-Commander Kovacic; as shown in his affidavit of
October 4th, 1948, and in his statements in Court at the public sittings on
November 24th, 25th, 26th and 27th, 1948. The Court gave much attention to
this evidence and to the documentary information supplied by the Parties. It
supplemented and checked all this information by sending two experts
appointed by it to Sibenik: Commodore S. A. Forshell and
Lieutenant-Commander S. J. W. Elfferich.
[39] Without deciding as to the personal sincerity oi the witness Kovacic,
or the truth of what he said, the Court finds that the facts stated by the
witness from his personal knowledge are not sufficient to prove what the
United Kingdom Government considered them to prove. His allegations that he
saw mines being loaded upon two Yugoslav minesweepers at Sibenik and that
these two vessels departed from Sibenik about October 18th and returned a
few days after the occurrence of the explosions do not suffice to constitute
decisive legal proof that the mines were laid by these two vessels in
Albanian waters off Saranda. The statements attributed [p17] by the witness
Kovacic to third parties, of which the Court has received no personal and
direct confirmation, can be regarded only as allegations falling short of
conclusive evidence. A charge of such exceptional gravity against a State
would require a degree of certainty that has not been reached here.
[40] Apart from Kovacic's evidence, the United Kingdom Government
endeavoured to prove collusion between Albania and Yugoslavia by certain
presumptions of fact, or circumstantial evidence, such as the possession, at
that time, by Yugoslavia, and by no other neighbouring State, of GY mines,
and by the bond of close political and military alliance between Albania and
Yugoslavia, resulting from the Treaty of friendship and mutual assistance
signed by those two States on July 9th, 1946.
[41] The Court considers that, even in so far as these facts are
established, they lead to no firm conclusion. It has not been legally
established that Yugoslavia possessed any GY mines, and the origin of the
mines laid in Albanian territorial waters remains a matter for conjecture.
It is' clear that the existence of a treaty, such as that of July 9th, 1946,
however close may be the bonds uniting its signatories, in no way leads to
the conclusion that they participated in a criminal act.
[42] On its side, the Yugoslav Government, although not a party to the
proceedings, authorized the Albanian Government to produce certain Yugoslav
documents, for the purpose of refuting the United Kingdom contention that
the mines had been laid by two ships of the Yugoslav Navy. As the Court was
anxious for full light to be thrown on the facts alleged, it did not refuse
to receive these documents. But Yugoslavia's absence from the proceedings
meant that these documents could only be admitted as evidence subject to
reserves, and the Court finds it unnecessary to express an opinion upon
their probative value.
[43] The Court need not dwell on the assertion of one of the Counsel for the
Albanian Government that the minefield might have been laid by the Greek
Government. It is enough to say that this was a mere conjecture which, as
Counsel himself admitted, was based on no proof.
[44] In the light of the information now available to the Court, the authors
of the minelaying remain unknown. In any case, the task of the Court, as
defined by the Special Agreement, is to decide whether Albania is
responsible, under international law, for the explosions which occurred on
October 22nd, 1946, and to give judgment as to the compensation, if any.
[45] Finally, the United Kingdom Government put forward the argument that,
whoever the authors of the minelaying were, it could not have been done
without the Albanian Government's knowledge. [18]
[46] It is clear that knowledge of the minelaying cannot be imputed to the
Albanian Government by reason merely of the fact that a minefield discovered
in Albanian territorial waters caused the explosions of which the British
warships were the victims. It is true, as international practice shows, that
a State on whose territory or in whose waters an act contrary to
international law has occurred, may be called upon to give an explanation.
It is also true that that State cannot evade such a request by limiting
itself to a reply that it is ignorant of the circumstances of the act and of
its authors. The State may, up to a certain point, be bound to supply
particulars of the use made by it of the means of information and inquiry at
its disposal. But it cannot be concluded from the mere fact of the control
exercised by a State over its territory and waters that that State
necessarily knew, or ought to have known, of any unlawful act perpetrated
therein, nor yet that it necessarily knew, or should have known, the
authors. This fact, by itself and apart from other circumstances, neither
involves prima facie responsibility nor shifts the burden of proof.
[47] On the other hand, the fact of this exclusive territorial control
exercised by a State within its frontiers has a bearing upon the methods of
proof available to establish the knowledge of that State as to such events.
By reason of this exclusive control, the other State, the victim of a breach
of international law, is often unable to furnish direct proof of facts
giving rise to responsibility. Such a State should be allowed a more liberal
recourse to inferences of fact and circumstantial evidence. This indirect
evidence is admitted in all systems of law, and its use is recognized by
international decisions. It must be regarded as of special weight when it is
based on a series of facts linked together and leading logically to a single
conclusion.
[48] The Court must examine therefore whether it has been established by
means of indirect evidence that Albania has knowledge of mine-laying in her
territorial waters independently of any connivance on her part in this
operation. The proof may be drawn from inferences of fact, provided that
they leave no room for reasonable doubt. The elements of fact on which these
inferences can be based may differ from those which are relevant to the
question of connivance.
[49] In the present case, two series of facts, which corroborate one
another, have to be considered: the first relates to Albania's attitude
before and after the disaster of October 22nd, 1946; the other concerns the
feasibility of observing minelaying from the Albanian coast.
[50] 1. It is clearly established that the Albanian Government constantly
kept a close watch over the waters of the North Corfu Channel, at any rate
after May 1946. This vigilance is proved [p19] by the declaration of the
Albanian Delegate in the Security Council on February 19th, 1947 (Official
Records of the Security Council, Second Year, No. 16, p. 328), and
especially by the diplomatic notes of the Albanian Government concerning the
passage of foreign ships through its territorial waters. This vigilance
sometimes went so far as to involve the use of force: for example the
gunfire in the direction of the British cruisers Orion and Superb on May
15th, 1946, and the shots fired at the U.N.R.R.A. tug and barges on October
29th, 1946, as established by the affidavit of Enrico Bargellini, which was
not seriously contested.
[51] The Albanian Government's notes are all evidence of its intention to
keep a jealous watch on its territorial waters. The note verbale addressed
to the United Kingdom on May 21st, 1946, reveals the existence of a "General
Order", in execution of which the Coastal Commander gave the order to fire
in the direction of the British cruisers. This same note formulates a demand
that "permission" shall be given, by the Albanian authorities, for passage
through territorial waters. The insistence on "formalities" and "permission"
by Albania is repeated in the Albanian note of June 19th.
[52] As the Parties agree that the minefield had been recently laid, it must
be concluded that the operation was carried out during the period of close
watch by the Albanian authorities in this sector. This conclusion renders
the Albanian Government's assertion of ignorance a priori somewhat
improbable.
[53] The Court also noted the reply of Captain Ali Shtino to a question put
by it; this reply shows that the witness, who had been called on to replace
the Coastal Defence Commander for a period of thirteen to fifteen days,
immediately before the events of October 22nd, had received the following
order: "That the look-out posts must inform me of every movement [in the
Corfu Channel], and that no action would be taken on our part."
[54] The telegrams sent by the Albanian Government on November 13th and
November 27th, 1946, to the Secretary-General of the United Nations, at a
time when that Government was fully aware of the discovery of the minefield
in Albanian territorial waters, are especially significant of the measures
taken by the Albanian Government. In the first telegram, that Government
raised the strongest protest against the movements and activity of British
naval units in its territorial waters on November 12th and 13th, 1946,
without even mentioning the existence of a minefield in these waters. In the
second, it repeats its accusations against the United Kingdom, without in
any way protesting against the laying of this minefield which, if effected
without Albania's consent, constituted a very serious violation of her
sovereignty.
[55] Another indication of the Albanian Government's knowledge consists in
the fact that that Government did not notify [p20] the presence of mines in
its waters, at the moment when it must have known this, at the latest after
the sweep on November 13th, and further, whereas the Greek Government
immediately appointed a Commission to inquire into the events of October
22nd, the Albanian Government took no decision of such a nature, nor did it
proceed to the judicial investigation incumbent, in such a case, on the
territorial sovereign.
[56] This attitude does not seem reconcilable with the alleged ignorance of
the Albanian authorities that the minefield had been laid in Albanian
territorial waters. It could be explained if the Albanian Government, while
knowing of the minelaying, desired the circumstances of the operation to
remain secret.
[57] 2. As regards the possibility of observing minelaying from the Albanian
coast, the Court regards the following facts, relating to the technical
conditions of a secret minelaying and to the Albanian surveillance, as
particularly important.
[58] The Bay of Saranda and the channel used by shipping through the Strait
are, from their geographical configuration, easily watched; the entrance of
the bay is dominated by heights offering excellent observation points, both
over the bay and over the Strait; whilst the channel throughout is close to
the Albanian coast. The laying of a minefield in these waters could hardly
fail to have been observed by the Albanian coastal defences.
[59] On this subject, it must first be said that the minelaying operation
itself must have required a certain time. The method adopted required,
according to the Experts of the Court, the methodical and well thought-out
laying of two rows of mines that had clearly a combined offensive and
defensive purpose: offensive, to prevent the passage, through the Channel,
of vessels drawing ten feet of water or more; defensive, to prevent vessels
of the same draught from entering the Bay of Saranda. The report of the
Experts reckons the time that the minelayers would have been in the waters,
between Cape Kiephali and St. George's Monastery, at between two and two and
a half hours. This is sufficient time to attract the attention of the
observation posts, placed, as the Albanian Government stated, at Cape
Kiephali and St. George's Monastery.
[60] The facilities for observation from the coast are confirmed by the two
following circumstances: the distance of the nearest mine from the coast was
only 500 metres; the minelayers must have passed at not more than about 500
metres from the coast between Denta Point and St. George's Monastery.
[61] Being anxious to obtain any technical information that might guide it
in its search for the truth, the Court submitted the following question to
the Experts appointed by it: [p21]
"On the assumption that the mines discovered on November 13th, 1946, were
laid at some date within the few preceding months, whoever may have laid
them, you are requested to examine the information available regarding (a)
the number and the nature of the mines, (b) the means for laying them, and
(c) the time required to do so, having regard to the different states of the
sea, the conditions of the locality, and the different weather conditions,
and to ascertain whether it is possible in that way to draw any conclusions,
and if so, what conclusions, in regard to:
(1) the means employed for laying the minefield discovered on November 13th,
1946, and
(2) the possibility of mooring those mines with those means without the
Albanian authorities being aware of it, having regard to the extent of the
measures of vigilance existing in the Saranda region."
[62] As the first Report submitted by the Experts did not seem entirely
conclusive, the Court, by a decision of January 17th, 1949, asked the
Experts to go to Saranda and to verify, complete and, if necessary, modify
their answers. In this way, observations were made and various experiments
carried out on the spot, in the presence of the experts of the Parties and
of Albanian officials, with a view to estimating the possibility of the
mine-laying having been observed by the Albanian look-cat posts. On this
subject reference must be made to a test of visibility by night, carried out
on the evening of January 28th, 1949, at St. George's Monastery. A motor
ship, 27 metres long, and with no bridge, wheel-house, or funnel, and very
low on the water, was used. The ship was completely blacked out, and on a
moonless night, i.e., under the most favourable conditions for avoiding
discovery, it was clearly seen and heard from St. George's Monastery. The
noise of the motor was heard at a distance of 1,800 metres, and the ship
itself was sighted at 570 metres and remained visible up to about 1,900
metres.
[63] The Experts' Report on this visit stated that:
"The Experts consider 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 as has been stated, under normal
weather conditions for this area, the minelaying operations shown in Annex g
to the United Kingdom Memorial must have been noticed by these coastguards."
[64] The Court cannot fail to give great weight to the opinion of the
Experts who examined the locality in a manner giving every guarantee of
correct and impartial information. Apart from the existence of a look-out
post at Cape Denta, which has not been proved, the Court, basing itself on
the declarations of the Albanian Government that look-out posts were
stationed at Cape Kiephali and St. George's Monastery, refers to the
following conclusions [p22] in the experts' Report: (1) that in the case of
minelaying from the North towards the South, the minelayers would have been
seen from Cape Kiephali; (2) in the case of minelaying from the South, the
minelayers would have been seen from Cape Kiephali and St. George's
Monastery.
[65] From all the facts and observations mentioned above, the Court draws
the conclusion that the laying of the minefield which caused the explosions
on October 22nd, 1946, could not have been accomplished without the
knowledge of the Albanian Government.
[66] The obligations resulting for Albania from this knowledge are not
disputed between the Parties. Counsel for the Albanian Government expressly
recognized that [translation]" if Albania had been informed of the operation
before the incidents of October 22nd, and in time to warn the British
vessels and shipping in general of the existence of mines in the Corfu
Channel, her responsibility would be involved....".
[67] The obligations incumbent upon the Albanian authorities consisted in
notifying, for the benefit of shipping in general, the existence of a
minefield in Albanian territorial waters and in warning the approaching
British warships of the imminent danger to which the minefield exposed them.
Such obligations are based, not on the Hague Convention of 1907, No. VIII,
which is applicable in time of war, but on certain general and
well-recognized principles, namely: elementary considerations of humanity,
even more exacting in peace than in war; the principle of the freedom of
maritime communication; and every State's obligation not to allow knowingly
its territory to be used for acts contrary to the rights of other States.
[68] In fact, Albania neither notified the existence of the minefield, nor
warned the British warships of the danger they were approaching.
[69] But Albania's obligation to notify shipping of the existence of mines
in her waters depends on her having obtained knowledge of that fact in
sufficient time before October 22nd; and the duty of the Albanian coastal
authorities to warn the British ships depends on the time' that elapsed
between the moment that these ships were reported and the moment of the
first explosion.
[70] On this subject, the Court makes the following observations. As has
already been stated, the Parties agree that the mines were recently laid. It
must be concluded that the minelaying, whatever may have been its exact
date, was done at a time when there was a close Albanian surveillance over
the Strait. If it be supposed that it took place at the last possible
moment, i.e., in the night of October 21st-22nd, the only conclusion to be
drawn would [p23] be that a general notification to the shipping of all
States before the time of the explosions would have been difficult, perhaps
a even impossible. But this would certainly not have prevented the Albanian
authorities from taking, as they should have done, all necessary steps
immediately to warn ships near the danger zone, more especially those that
were approaching that zone. When on October 22nd about 13.00 hours the
British warships were reported by the look-out post at St. George's
Monastery to the Commander of the Coastal Defences as approaching 'Cape
Long, it was perfectly possible for the Albanian authorities to use the
interval of almost two hours that elapsed before the explosion affecting
Saumarez (14.53 hours or 14.55 hours) to warn the vessels of the danger into
which they were running.
[71] In fact, nothing was attempted by the Albanian authorities to prevent
the disaster. These grave omissions involve the international responsibility
of Albania.
[72] The Court therefore reaches the conclusion that Albania is responsible
under international law for the explosions which occurred on October 22nd,
1946, in Albanian waters, and for the damage and loss of human life which
resulted from them, and that there is a duty upon Albania to pay
compensation to the United Kingdom.
***
[73] In the final submissions contained in its oral reply, the United
Kingdom Government asked the Court to give judgment that, as a result of the
breach by the Albanian Government of its obligations under international
law, it had sustained damages amounting to £ 875,000.
[74] In the last oral statement submitted in its name, the Albanian
Government, for the first time, asserted that the Court would not have
jurisdiction, in virtue of the Special Agreement, to assess the amount of
compensation. No reason was given in support of this new assertion, and the
United Kingdom Agent did not ask leave to reply. The question of the Court's
jurisdiction was not argued between the Parties.
[75] In the first question of the Special Agreement the Court is asked:
(i) Is Albania under international law responsible for the explosions and
for the damage and loss of human life which resulted from them, and
(ii) is there any duty to pay compensation?
[76] This text gives rise to certain doubts. If point (i) is answered in the
affirmative, it follows from the establishment of responsibility [p24] that
compensation is due, and it would be superfluous to add point (ii) unless
the Parties had something else in mind than a mere declaration by the Court
that compensation is due. It would indeed be incompatible with the generally
accepted rules of interpretation to admit that a provision of this sort
occurring in a special agreement should be devoid of purport or effect. In
this connexion, the Court refers to the views expressed by the Permanent
Court of International Justice with regard to similar questions of
interpretation. In Advisory Opinion No. 13 of July 23rd, 1926, that Court
said (Series B., No. 13, p. 19): "But, so far as concerns the specific
question of competence now pending, it may suffice to observe that the
Court, in determining the nature and scope of a measure, must look to its
practical effect rather than to the predominant motive that may be
conjectured to have inspired it." In its Order of August 19th, 1929, in the
Free Zones case, the Court said (Series A., No. 22, p. 13): "in case of
doubt, the clauses of a special agreement by which a dispute is referred to
the Court must, if it does not involve doing violence to their terms, be
construed in a manner enabling the clauses themselves to have appropriate
effects"
[77] The Court thinks it necessary to refer to the different stages of the
procedure. In its Resolution of April 9th, 1947, the Security Council
recommended that the two Governments should immediately refer "the dispute"
to the Court. This Resolution had without doubt for its aim the final
adjustment of the whole dispute. In pursuance of the Resolution, the
Government of the United Kingdom filed an Application in which the Court was
asked, inter alia, to "determine the reparation or compensation", and in its
Memorial that Government stated the various sums claimed. The Albanian
Government thereupon submitted a Preliminary Objection, which was rejected
by the Court by its Judgment of March 25th, 1948. Immediately after this
judgment was delivered, the Agents of the Parties notified the Court of the
conclusion of a Special Agreement. Commenting upon this step taken by the
Parties, the Agent of the Albanian Government said that in the circumstances
of the present case a special agreement on which "the whole procedure"
should be based was essential. He further said [translation]: "As I have
stated on several occasions, it has always been the intention of the
Albanian Government to respect the decision taken by the Security Council on
April 9th, 1947, in virtue of which the present Special Agreement is
submitted to the International Court of Justice."
[78] Neither the Albanian nor the United Kingdom Agent suggested in any way
that the Special Agreement had limited the competence of the Court in this
matter to a decision merely upon the principle of compensation or that the
United Kingdom Government had abandoned an important part of its original
claim. The main [p25] object both Parties had in mind when they concluded
the Special Agreement was to establish a complete equality between them by
replacing the original procedure based on a unilateral Application by a
procedure based on a Special Agreement. There is no suggestion that this
change as to procedure was intended to involve any change with regard to the
merits of the British claim as originally presented in the Application and
Memorial. Accordingly, the Court, after consulting the Parties, in its Order
of March 26th, 1948, maintained the United Kingdom's Memorial, filed
previously, "with statements and submissions". These submissions included
the claim for a fixed sum of compensation.
[79] The subsequent attitude of the Parties shows that it was not their
intention, by entering into the Special Agreement, to preclude the Court
from fixing the amount of the compensation. In its Reply (paragraph 71) the
United Kingdom Government maintained the submissions contained in paragraph
96 of its Memorial, including the claim for a fixed amount of reparation.
This claim was expressly repeated in the final United Kingdom submissions.
In paragraph 52 of its Counter-Memorial, the Albanian Government stated that
it had no knowledge of the loss of human life and damage to ships, but it
did not contest the Court's competence to decide this question. In the
Rejoinder, paragraph 96, that Government declared that, owing to its claim
for the dismissal of the case, it was unnecessary for it to examine the
United Kingdom's claim for reparation. [Translation.] "It reserves the right
if need be, to discuss this point which should obviously form the subject of
an expert opinion." Having regard to what is said above as to the previous
attitude of that Government, this statement must be considered as an implied
acceptance of the Court's jurisdiction to decide this question.
[80] It may be asked why the Parties, when drafting the Special Agreement,
did not expressly ask the Court to assess the amount of the damage, but used
the words: "and is there any duty to pay compensation?" It seems probable
that the explanation is to be found in the similarity between this clause
and the corresponding clause in the second part of the Special Agreement:
"and is there any duty to give satisfaction?"
[81] The Albanian Government has not disputed the competence of the Court to
decide what kind of satisfaction due under this part of the Agreement. The
case was argued on behalf of both Parties on the basis that this question
should be decided by the Court. In the written pleadings, the Albanian
Government contended that it was entitled to apologies. During the oral
proceedings, [p26] Counsel for Albania discussed the question whether a
pecuniary satisfaction was due. As no damage was caused, he did not claim
any sum of money. He concluded [translation]: "What we desire is the
declaration of the Court from a legal point of view ...."
[82] If, however, the Court is competent to decide what kind of satisfaction
is due to Albania under the second part of the Special Agreement, it is
difficult to see why it should lack competence to decide the amount of
compensation which is due to the United Kingdom under the first part. The
clauses used in the Special Agreement are parallel. It cannot be supposed
that the Parties, while drafting these clauses in the same form, intended to
give them opposite meanings -- the one as giving the Court jurisdiction, the
other as denying such jurisdiction.
[83] As has been said above, the Security Council, in its Resolution of
April 9th, 1947, undoubtedly intended that the whole dispute should be
decided by the Court. If, however, the Court should limit itself to saying
that there is a duty to pay compensation without deciding what amount of
compensation is due, the dispute would not be finally decided. An important
part of it would remain unsettled. As both Parties have repeatedly declared
that they accept the Resolution of the Security Council, such a result would
not conform with their declarations. It would not give full effect to the
Resolution, but would leave open the possibility of a further dispute.
[84] For the foregoing reasons, the Court has arrived at the conclusion that
it has jurisdiction to assess the amount of the compensation. This cannot,
however, be done in the present Judgment. The Albanian Government has not
yet stated which items, if any, of the various sums claimed it contests, and
the United Kingdom Government has not submitted its evidence with regard to
them.
[85] The Court therefore considers that further proceedings on this subject
are necessary; the order and time-limits of these proceedings will be fixed
by the Order of this date.
***
[86] In the second part of the Special Agreement, the following question is
submitted to the Court:
"(2) Has the United Kingdom under international law violated the sovereignty
of the Albanian People's Republic by reason of the acts of the Royal Navy in
Albanian waters on the 22nd October and on the 12th and 13th November 1946
and is there any duty to give satisfaction?"
[87] The Court will first consider whether the sovereignty of Albania was
violated by reason of the acts of the British Navy in Albanian waters on
October 22nd, 1946. [p27]
[88] On May 15th, 1946, the British cruisers Orion and Superb, while passing
southward through the North Corfu Channel, were fired at by an Albanian
battery in the vicinity of Saranda. It appears from the report of the
commanding naval officer dated May 29th, 1946, that the firing started when
the ships had already passed the battery and were moving away from it; that
from 12 to 20 rounds were fired; that the firing lasted 12 minutes and
ceased only when the ships were out of range; but that the ships were not
hit although there were a number of "shorts" and of "overs". An Albanian
note of May 21st states that the Coastal Commander ordered a few shots to be
fired in the direction of the ships "in accordance with a General Order
founded on international law".
[89] The United Kingdom Government at once protested to the Albanian
Government, stating that innocent passage through straits is a right
recognized by international law. There ensued a diplomatic correspondence in
which the Albanian Government asserted that foreign warships and merchant
vessels had no right to pass through Albanian territorial waters without
prior notification to, and the permission of, the Albanian authorities. This
view was put into effect by a communication of the Albanian Chief of Staff,
dated May 17th, 1946, which purported to subject the passage of foreign
warships and merchant vessels in Albanian territorial. waters to previous
notification to and authorization by the Albanian Government. The diplomatic
correspondence continued, and culminated in a United Kingdom note of August
2nd, 1946, in which the United Kingdom Government maintained its view with
regard to the right of innocent passage through straits forming routes for
international maritime traffic between two parts of the high seas. The note
ended with the warning that if Albanian coastal batteries in the future
opened fire on any British warship passing through the Corfu Channel, the
fire would be returned.
[90] The contents of this note were, on August 1st, communicated by the
British Admiralty to the Commander-in-Chief, Mediterranean, with the
instruction that he should refrain from using the Channel until the note had
been presented to the Albanian Government. On August 10th, he received from
the Admiralty the following telegram: "The Albanians have now received the
note. North Corfu Strait may now be used by ships of your fleet, but only
when essential and with armament in fore and aft position. If coastal guns
fire at ships passing through the Strait, ships should fire back." On
September 21st, the following telegram [p28] was sent by the Admiralty to
the Commander-in-Chief, Mediterranean: "Establishment of diplomatic
relations with Albania is again under consideration by His Majesty's
Government who wish to know whether the Albanian Government have learnt to
behave themselves. Information is requested whether any ships under your
command have passed through the North Corfu Strait since August and, if not,
whether you intend them to do so shortly." The Commander-in-Chief answered
the next day that his ships had not done so yet, but that it was his
intention that Mauritius and Lender and two destroyers should do so when
they departed from Corfu on October 22nd.
[91] It was in such circumstances that these two cruisers together with the
destroyers Sazwzarez and Volage were sent through the North Corfu Strait on
that date.
[92] The Court will now consider the Albanian contention that the United
Kingdom Government violated Albanian sovereignty by sending the warships
through this Strait without the previous authorization of the Albanian
Government.
[93] It is, in the opinion of the Court, generally recognized and in
accordance with international custom that States in time of peace have a
right to send their warships through straits used for international
navigation between two parts of the high seas without the previous
authorization of a coastal State, provided that the passage is innocent.
Unless otherwise prescribed in an international convention, there is no
right for a coastal State to prohibit such passage through straits in time
of peace.
[94] The Albanian Government does not dispute that the North Corfu Channel
is a strait in the geographical sense; but it denies that this Channel
belongs to the class of international highways through which a right of
passage exists, on the grounds that it is only of secondary importance and
not even a necessary route between two parts of the high seas, and that it
is used almost exclusively for local traffic to and from the ports of Corfu
and Saranda.
[95] It may be asked whether the test is to be found in the volume of
traffic passing through the Strait or in its greater or lesser importance
for international navigation. But in the opinion of the Court the decisive
criterion is rather its geographical situation as connecting two parts of
the high seas and the fact of its being used for international navigation.
Nor can it be decisive that this Strait is not a necessary route between two
parts of the high seas, but only an alternative passage between the Aegean
and the Adriatic Seas. It has nevertheless been a useful route for
international maritime traffic. In this respect, the Agent of the United
Kingdom Government gave the Court the following information relating to the
[p29] period from April 1st, 1936, to December 31st, 1937: "The following is
the total number of ships putting in at the Port of Corfu after passing
through or just before passing through the Channel. During the period of one
year nine months, the total number of ships was 2,884. The flags of the
ships are Greek, Italian, Roumanian, Yugoslav, French, Albanian and British.
Clearly, very small vessels are included, as the entries for Albanian
vessels are high, and of course one vessel may make several journeys, but
2,884 ships for a period of one year nine months is quite a large figure.
These figures relate to vessels visited by the Customs at Corfu and so do
not include the large number of vessels which went through the Strait
without calling at Corfu at all." There were also regular sailings through
the Strait by Greek vessels three times weekly, by a British ship
fortnightly, and by two Yugoslav vessels weekly and by two others
fortnightly. The Court is further informed that the British Navy has
regularly used this Channel for eighty years or more, and that it has also
been used by the navies of other States.
[96] One fact of particular importance is that the North Corfu Channel
constitutes a frontier between Albania and Greece, that a part of it is
wholly within the territorial waters of these States, and that the Strait is
of special importance to Greece by reason of the traffic to and from the
port of Corfu.
[97] Having regard to these various considerations, the Court has arrived at
the conclusion that the North Corfu Channel should be considered as
belonging to the class of international highways through which passage
cannot be prohibited by a coastal State in time of peace.
[98] On the other hand, it is a fact that the two coastal States did not
maintain normal relations, that Greece had made territorial claims precisely
with regard to a part of Albanian territory bordering on the Channel, that
Greece had declared that she considered herself technically in a state of
war with Albania, and that Albania, invoking the danger of Greek incursions,
had considered it necessary to take certain measures of vigilance in this
region. The Court is of opinion that Albania, in view of these exceptional
circumstances, would have been justified in issuing regulations in respect
of the passage of warships through the Strait, but not in prohibiting such
passage or in subjecting it to the requirement of special authorization.
[99] For these reasons the Court is unable to accept the Albanian contention
that the Government of the United Kingdom has violated Albanian sovereignty
by sending the warships through [p30] the Strait without having obtained the
previous authorization of the Albanian Government.
[100] In these circumstances, it is unnecessary to consider the more general
question, much debated by the Parties, whether States under international
law have a right to send warships in time of peace through territorial
waters not included in a strait.
[101] The Albanian Government has further contended that the sovereignty of
Albania was violated because the passage of the British warships on October
22nd, 1946, was not an innocent passage. The reasons advanced in support of
this contention may be summed up as follows: The passage was not an ordinary
passage, but a political mission; the ships were manoeuvring and sailing in
diamond combat formation with soldiers on board; the position of the guns
was not consistent with innocent passage; the vessels passed with crews at
action stations; the number of the ships and their armament surpassed what
was necessary in order to attain their object and showed an intention to
intimidate and not merely to pass; the ships had received orders to observe
and report upon the coastal defences and this order was carried out.
[102] It is shown by the Admiralty telegram of September 21st, cited above,
and admitted by the United Kingdom Agent, that the object of sending the
warships through the Strait was not only to carry out a passage for purposes
of navigation, but also to test Albania's attitude. As mentioned above, the
Albanian Government, on May 15th, 1946, tried to impose by means of gunfire
its view with regard to the passage. As the exchange of dipIomatic notes did
not lead to any clarification, the Government of the United Kingdom wanted
to ascertain by other means whether the Albanian Government would maintain
its illegal attitude and again impose its view by firing at passing ships.
The legality of this measure taken-by the Government of the United Kingdom
cannot be disputed, provided that it was carried out in a manner consistent
with the requirements of international law. The "mission" was designed to
affirm a right which had been unjustly denied. The Government of the United
Kingdom was not bound to abstain from exercising its right of passage, which
the Albanian Government had illegally denied.
[103] It remains, therefore, to consider whether the manner in which the
passage was carried out was consistent with the principle of innocent
passage and to examine the various contentions of the Albanian Government in
so far as they appear to be relevant.
[104] When the Albanian coastguards at St. George's Monastery reported that
the British warships were sailing in combat formation and were manoeuvring,
they must have been under a misapprehension. it is shown by the evidence
that the ships were not proceeding in combat formation but in line, one
after the other, [p31] and that they were not manoeuvring until after the
first explosion.
[105] Their movements thereafter mere due to the explosions and were made
necessary in order to save human life and the mined ships. It is shown by
the evidence of witnesses that the contention that soldiers were on board
must be due to a misunderstanding probably arising from the fact that the
two cruisers carried their usual detachment of marines.
[106] It is known from the above-mentioned order issued by the British
Admiralty on August 10th, 1946, that ships, when using the North Corfu
Strait, must pass with armament in fore and aft position. That this order
was carried out during the passage on October 22nd is stated by the
Commander-in-Chief, Mediterranean, in a telegram of October 26th to the
Admiralty. The guns were, he reported, "trained fore and aft, which is their
normal position at sea in pea-time, and were not loaded". It is confirmed by
the commanders of Saumarez and Volage that the guns were-in this position
before the explosions. The navigating officer on board Mauritius explained
that all guns on that cruiser were in their normal stowage position. The
main guns were in the line of the ship, and the anti-aircraft guns were
pointing outwards and up into the air, which is the normal position of these
guns on a cruiser both in harbour and at sea. In the light of this evidence,
the Court cannot accept the Albanian contention that the position of the
guns was inconsistent with the rules of innocent passage.
[107] In the above-mentioned telegram of October 26th, the
Commander-in-Chief reported that the passage "was made with ships at action
stations in order that they might be able to retaliate quickly if fired upon
again". In view of the firing from the Albanian battery on May 15th, this
measure of precaution cannot, in itself, he regarded as unreasonable. But
four warships -- two cruisers and two destroyers -- passed in this manner,
with crews at action stations, ready to retaliate quickly if fired upon.
They passed one after another through this narrow channel, close to the
Albanian coast, at a time of political tension in this region. The intention
must have been, not only to test Albania's attitude, but at the same time to
demonstrate such force that she would abstain from firing again on passing
ships. Having regard, however, to all the circumstances of the case, as
described above, the Court is unable to characterize these measures taken by
the United Kingdom authorities as a violation of Albania's sovereignty.
[108] The Admiralty Chart, Annex 21 to the Memorial, shows that coastal
defences in the Saranda region had been observed and reported. In a report
of the commander of Volage, dated October [p32] 23rd, 1946 -- a report
relating to the passage on the 22nd -- it is stated: "The most was made of
the opportunities to study Albanian defences at close range. These included,
with reference to XCU...." -- and he then gives a description of some
coastal defences.
[109] In accordance with Article 49 of the Statute of the Court and Article
54 of its Rules, the Court requested the United Kingdom Agent to produce the
documents referred to as XCU for the use of the Court. Those documents were
not produced, the Agent pleading naval secrecy; and the United Kingdom
witnesses declined to answer questions relating to them. It is not therefore
possible to know the real content of these naval orders. The Court cannot,
however, draw from this refusal to produce the orders any conclusions
differing from those to which the actual events gave rise. The United
Kingdom Agent stated that the instructions in these orders related solely to
the contingency of shots being fired from the coast -- which did not
happen... If it is true, as the commander of Volage said in evidence, that
the orders contained information concerning certain positions from which the
British warships might have been fired at, it cannot be deduced therefrom
that the vessels had received orders io reconnoitre Albanian coastal
defences. Lastly, as the Court has to judge of the innocent nature of the
passage, it cannot remain indifferent to the fact that, though two warships
struck mines, there was no reaction, either on their part or on that of the
cruisers that accompanied them.
[110] With regard to the observations of coastal defences made after the
explosions, these were justified by the fact that two ships had just been
blown up and that, in this critical situation, their commanders might fear
that they would be fired on from the coast, as on May 15th.
[111] Having thus examined the various contentions of the Albanian
Government in so far as they appear to be relevant, the Court has arrived at
the conclusion that the United Kingdom did not violate the sovereignty of
Albania by reason of the acts of the British Navy in Albanian waters on
October 22nd, 1946.
***
[112] In addition to the passage of the United Kingdom warships on October
22nd, 1946, the second question in the Special Agreement relates to the acts
of the Royal Navy in Albanian waters on November 12th and 13th, 1946. This
is the minesweeping operation called "Operation Retail" by the Parties
during the proceedings. This name will be used in the present Judgment.
[p33]
[113] After the explosions of October 22nd, the United Kingdom Government
sent a note to the Albanian Government, in which it announced its intention
to sweep the Corfu Channel shortly. The Albanian reply, which was received
in London on October 31st, stated that the Albanian Government would not
give its consent to this unless the operation in question took place outside
Albanian territorial waters. Meanwhile, at the United Kingdom Government's
request, the International Central Mine Clearance Board decided, in a
resolution of November 1st, 1946, that there should be a further sweep of
the Channel, subject to Albania's consent. The United Kingdom Government
having informed the Albanian Government, in a communication of November
10th, that the proposed sweep would take place on November nth, the Albanian
Government replied on the 11th, protesting against this "unilateral decision
of His Majesty's Government". It said it did not consider it inconvenient
that the British fleet could undertake the sweeping of the channel of
navigation, but added that, before sweeping was carried out, it considered
it indispensable to decide what area of the sea should be deemed to
constitute this channel, and proposed the establishment of a Mixed
Commission for the purpose. It ended by saying that any sweeping undertaken
without the consent of the Albanian Government outside the channel thus
constituted, i.e., inside Albanian territorial waters where foreign warships
have no reason to sail, could only be considered as a deliberate violation
of Albanian territory and sovereignty.
[114] After this exchange of notes, "Operation Retail" took place on
November 12th and 13th. Commander Mestre, of the French Navy, was asked to
attend as observer, and was present at the sweep on November 13th. The
operation was carried out under the protection of an important covering
force composed of an aircraft carrier, cruisers and other war vessels. This
covering force remained throughout the operation at a certain distance to
the west of the Channel, except for the frigate St. Bride's Bay, which was
stationed in the Channel south-east of Cape Kiephali. The sweep began in the
morning of November 13th, at about 9 o'clock, and ended in the afternoon
near nightfall. The area swept was in Albanian territorial waters, and
within the limits of the channel previously swept.
[115] The United Kingdom Government does not dispute that "Operation Retail"
was carried out against the clearly expressed wish of the Albanian
Government. It recognizes that the operation had not the consent of the
international mine clearance organizations, that it could not be justified
as the exercise of a right of innocent passage, and lastly that, in
principle, international law does not allow a State to assemble a large
number of warships in the [p34] territorial waters of another State and to
carry out minesweeping in those waters. The United Kingdom Government states
that the operation was one of extreme urgency, and that it considered itself
entitled to carry it out without anybody's consent.
[116] The United Kingdom Government put forward two reasons in
justification. First, the Agreement of November 22nd, 1945, signed by the
Governments of the United Kingdom, France, the Soviet Union and the United
States of America, authorizing regional mine clearance organizations, such
as the Mediterranean Zone Board, to divide the sectors in their respective
zones amongst the States concerned for sweeping. Relying on the circumstance
that the Corfu Channel was in the sector allotted to Greece by the
Mediterranean Zone Board on November 5th, i.e., before the signing of the
above-mentioned Agreement, the United Kingdom Government put forward a
permission given by the Hellenic Government to resweep the navigable
channel.
[117] The Court does not consider this argument convincing.
[118] It must be noted that, as the United Kingdom Government admits, the
need for resweeping the Channel was not under consideration in November
1945; for previous sweeps in 1944 and 1945 were considered as having
effected complete safety. As a consequence, the allocation of the sector in
question to Greece, and, therefore, the permission of the Hellenic
Government which is relied on, were both of them merely nominal. It is also
to be remarked that Albania was not consulted regarding the allocation to
Greece of the sector in question, despite the fact that the Channel passed
through Albanian territorial waters.
[119] But, in fact, the explosions of October 22nd, 1946, in a channel
declared safe for navigation, and one which the United Kingdom Government,
more than any other government, had reason to consider safe, raised quite a
different problem from that of a routine sweep carried out under the orders
of the mineclearance organizations. These explosions were suspicious; they
raised a question of responsibility.
[120] Accordingly, this was the ground on which the United Kingdom
Government chose to establish its main line of defence. According to that
Government, the corpora delicti must be secured as quickly as possible, for
fear they should be taken away, without leaving traces, by the authors of
the minelaying or by the Albanian authorities. This justification took two
distinct forms in the United Kingdom Government's arguments. It was
presented first as a new and special application of the theory of
intervention, by means of which the State intervening would secure
possession of evidence in the territory of another State, in order to submit
it to an international tribunal and thus facilitate its task. [p35]
[121] The Court cannot accept such a line of defence. The Court can only
regard the alleged right of intervention as the manifestation of a policy of
force, such as has, in the past, given rise to most serious abuses and such
as cannot, whatever be the present defects in international organization,
find a place in international law. Intervention is perhaps still less
admissible in the particular form it would take here; for, from the nature
of things, it would be reserved for the most powerful States, and might
easily lead to perverting the administration of international justice
itself.
[122] The United Kingdom Agent, in his speech in reply, has further
classified "Operation Retail" among methods of self-protection or self-help.
The Court cannot accept this defence either. Between independent States,
respect for territorial sovereignty is an essential foundation of
international relations. The Court recognizes that the Albanian Government's
complete failure to carry out its duties after the explosions, and the
dilatory nature of its diplomatic notes, are extenuating circumstances for
the action of the United Kingdom Government. But to ensure respect for
international law, of which it is the organ, the Court must declare that the
action of the British Navy constituted a violation of Albanian sovereignty.
[123] This declaration is in accordance with the request made by Albania
through her Counsel, and is in itself appropriate satisfaction.
[124] The method of carrying out "Operation Retail" has also been criticized
by the Albanian Government, the main ground of complaint being that the
United Kingdom, on that occasion, made use of an unnecessarily large display
of force, out of proportion to the requirements of the sweep. The Court
thinks that this criticism is not justified. It does not consider that the
action of the British Navy was a demonstration of force for the purpose of
exercising political pressure on Albania. The responsible naval commander,
who kept his ships at a distance from the coast, cannot be reproached for
having employed an important covering force in a region where twice within a
few months his ships had been the object of serious outrages.
[125] For These Reasons,
The Court,
on the first question put by the Special Agreement of March 25th, 1948,
by eleven votes to five,
Gives judgment that the People's Republic of Albania is responsible under
international law for the explosions which occurred on October 22nd, 1946,
in Albanian waters, and for the damage and loss of human life that resulted
therefrom; and
by ten votes to six,
Reserves for further consideration the assessment of the amount of
compensation and regulates the procedure on this subject by an Order dated
this day;
on the second question put by the Special Agreement of March 25th, 1948,
by fourteen votes to two,
Gives judgment that the United Kingdom did not violate the sovereignty of
the People's Republic of Albania by reason of the acts of the British Navy
in Albanian waters on October 22nd, 1946; and
unanimously,
Gives judgment that by reason of the acts of the British Navy in Albanian
waters in the course of the Operation of November 12th and 13th, 1946, the
United Kingdom violated the sovereignty of the People's Republic of Albania,
and that this declaration by the Court constitutes in itself appropriate
satisfaction. [p36]
Done in French and English, the French text being authoritative, at the
Peace Palace, The Hague, this ninth day of April, one thousand nine hundred
and forty-nine, in three copies, one of which will be placed in the archives
of the Court and the others transmitted to the Government of the United
Kingdom of Great Britain and Northern Ireland and of the People's Republic
of Albania respectively.
(Signed) J. G. Guerrero, Acting President.
(Signed) E. Hambro, Registrar.
Judge Basdevant, President of the Court, whilst accepting the whole of the
operative part of the Judgment, feels bound to state that he cannot accept
the reasons given by the Court in support of its jurisdiction to assess the
amount of compensation, other. reasons being in his opinion more decisive.
Judge Zoricic declares that he is unable to agree either with the operative
clause or with the reasons for the Judgment in the part relating to
Albania's responsibility; the arguments submitted, and the facts established
are not such as to convince him that the Albanian Government was, or ought
to have been, aware, before November 13th, 1946, of the existence of the
minefield discovered on that date. On the one hand, the attitude adopted by
a government when confronted by certain facts varies according to the
circumstances, to its mentality, to the means at its disposal and to its
experience in the conduct of public affairs. But it has not been contested
that, in 1946, Albania had a new Government possessing no experience in
international practice. It is therefore difficult to draw any inferences
whatever from its attitude. Again, the conclusion of the Experts that the
operation of laying the mines must have been seen is subject to an express
reservation: it would be necessary to assume the realization of several
conditions, in particular the maintenance of normal look-out posts at Cape
[p38] Kiephali, Denta Point and San Giorgio Monastery, and the existence of
normal weather conditions at the date. But the Court knows neither the date
on which the mines were laid nor the weather conditions prevailing on that
date. Furthermore, no proof has been furnished of the presence of a look-out
post on Denta Point, though that, according to the Experts, would have been
the only post which would necessarily have observed the minelaying. On the
other hand, the remaining posts would merely have been able to observe the
passage of the ships, and there is no evidence to show that they ought to
have concluded that the ships were going to lay mines. According to the
Experts, these posts could neither have seen nor heard the minelaying,
because the San Giorgio Monastery was 2,000 m. from the nearest mine and
Cape Kiephali was several kilometres away from it. As a result, the Court is
confronted with suspicions, conjectures and presumptions, the foundations
for which, in Judge Zoricic's view, are too uncertain to justify him in
imputing to a State the responsibility for a grave delinquency in
international law.
Judge Alvarez, whilst concurring 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 individual opinion.
Judges Winiarski, Badawi Pasha, Krylov and Azevedo, and Judge ad hoc Ecer,
declaring that they are unable to concur 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 statements of their dissenting
opinions.
(Initialled) J. G. G.
(Initialled) E. H.
Separate opinion by Judge Alvarez
Dissenting opinion by Judge
Winiarski
Dissenting opinion by Judge Badawi
Pasha
Dissenting opinion by Judge Krylov
Dissenting opinion by Judge Azevedo
Dissenting opinion by Judge ad hoc Ečer |
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