Introduction:

Incidents that occurred on 22^nd October 1946, in the Corfu Strait: Two British cruisers and two destroyers, coming from the south, entered the North Corfu Strait in a part of the Albanian waters, which had been previously swept in 1944 and check-swept in 1945. One of the destroyers, the Saumarez, when off Saranda, struck a mine and was gravely damaged. The other destroyer, the Volage, was sent to her assistance and, while towing her, struck another mine and was also seriously damaged. Forty-five British officers and sailors lost their lives, and forty-two others were wounded. The United Kingdom first seized the Security Council of the United Nations which, by a Resolution of 9^th April 1947, recommended the two Governments to submit the dispute to the International Court of Justice (ICJ). The United Kingdom seized the ICJ of the dispute by an Application filed on 22^nd May 1947 and alleged that the mine laying had been carried out by two Yugoslav warships by the request of Albania, or with her acquiescence after mine-clearing operations had been carried out by the Allied naval authorities. This case is known as Corfu Channel Case. This dispute gave rise to three Judgments by the Court.

The First Judgment (On Jurisdiction):

The first judgment dated 25^th March 1948 relates to an objection to the admissibility of the case raised by Albania. The Court found, inter alia, that a communication dated 2^nd July 1947, addressed to it by the Government of Albania, constituted a voluntary acceptance of its jurisdiction. It recalled on that occasion that the consent of the parties to the exercise of its jurisdiction was not subject to any particular conditions of form and stated that, at that juncture, it could not hold to be irregular a proceeding not precluded by any provision in those texts. The Court declared that it possessed jurisdiction.

On the same day the two Parties concluded a Special Agreement asking the Court to give judgment on the following questions. Only one aspect of the first question – Is Albania responsible for the explosions?

Second Judgment (of Responsibility of a State):

The UK claimed that Albania had breached its international obligations and was internationally responsible for the deaths, injuries and damage caused by the mines. The arguments  developed  by  the  UK  in  its  pleadings  and  taken  up  by  the  ICJ  constitute  a  major  influence  on  the  development  of  international  law.  The pleadings of the  UK  later  developed as due diligence obligations of States regarding the use of their territory. The  UK  was  represented  before  the  ICJ  by  Sir  Hartley  Shawcross,  then  Attorney-General,  and  Sir  Eric  Beckett,  Legal  Counsel  for  the  Foreign  Office.  Other  members  of  the  UK  legal  team  included  Hersch  Lauterpacht  in  the  Preliminary  Objections  phase  and  Humphrey  Waldock,  Richard  Wilberforce,  Mervyn Jones and E Reed in the Merits phase. The UK submitted that even if it could not be proven that Albania had laid  the  mines,  Albania  was  “responsible  for  any  minefield  existing  with  her  knowledge in her territorial waters and for the consequences thereof ”.

The second Judgment, rendered on 9^th April 1949, related to the merits of the dispute. In this judgment the ICJ elaborated on the  meaning of due diligence obligations of States with respect to the use of their territory. The judgment  is  also  noteworthy  for  its  development  of  procedural  issues  before  the  ICJ,  including  the  examination  of  witnesses,  reliance  on  circumstantial  evidence and the admissibility of unlawfully obtained evidence.

 The Court observed: “the explosions were caused by mines belonging to the minefield discovered on November 13th. It is not, indeed, contested that this minefield had been recently laid; it was in the channel, which had been previously swept and check-swept and could be regarded as safe, that the explosions had taken place. The nature of the damage shows that it was due to mines of the same type as those swept on November 13th; finally, the theory that the mines discovered on November 13th might have been laid after the explosions on October 22nd is too improbable to be accepted.”

The Court found that Albania was responsible under international law for the explosions that had taken place in Albanian waters and for the damage and loss of life which had ensued. It did not accept the view that Albania had itself laid the mines or the purported connivance of Albania with a mine-laying operation carried out by the Yugoslav Navy at the request of Albania. On the other hand, it held that the mines could not have been laid without the knowledge of the Albanian Government.

The ICJ concurred  in  this  submission,  and  held  that  a  State  has  an  obligation  “not  to allow knowingly its territory to be used for acts contrary to the rights of other States”.

The Court further observed: “The State which is the victim must, in that case, be allowed a more liberal recourse to inferences of fact and circumstantial evidence; such indirect evidence must be regarded as of especial weight when based on a series of facts, linked together and leading logically to a single conclusion. Albania, for its part, had submitted a counter-claim against the United Kingdom. It accused the latter of having violated Albanian sovereignty by sending warships into Albanian territorial waters and of carrying out minesweeping operations in Albanian waters after the explosions. The Court did not accept the first of these complaints but found that the United Kingdom had exercised the right of innocent passage through international straits. On the other hand, it found that the minesweeping had violated Albanian sovereignty, because it had been carried out against the will of the Albanian Government.” Thus the ICJ did not accept the notion of “self-help” asserted by the United Kingdom to justify its intervention.

Court also observed: “Albania would have had sufficient time to notify shipping of the existence of mines, and finds that, even if the mines had been laid at the last possible moment, in the night of October 21st -22nd, the Albanian authorities could still have warned ships approaching the danger zone. There was an interval of two hours between when the British ships were reported by a look-out post and the time of the first explosion. No warning was given, and the Court held that the omission involve international responsibility for the explosions, and the damage and loss of human life to which they gave rise.”

The Third Judgment (Compensation):

In a third Judgment, rendered on 15 December 1949, the Court assessed the amount of reparation owed to the United Kingdom and ordered Albania to pay £844,000.

Conclusion:

The arguments  developed  by  the  UK  in  its  pleadings  and  taken  up  by  the  ICJ  during the Corfu case constitute  a  major  influence  on  the  development  of  international  law.  The pleadings of the UK later developed as due diligence obligations of States regarding the use of their territory. The standard put forward in the case has  also been adopted by the Tallinn Manual on the International Law Applicable to  Cyber  Warfare  in  relation  to  cyber  infrastructure  located  within  a  State’s  territory. The finding on responsibility arising from acts within a State’s territory has been particularly important for the development of international environmental law.

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Austin’s View:

Let us understand the nature of International law on the basis of Austin’s imperative or command theory.

Austin’s Imperative or Command Theory of Law:

Imperative theory of law was proposed by British jurist Austin. According to Austin, positive law has three main features:

• it is a type of command,
• It is laid down by a political sovereign, and
• It is enforceable to sanction. Thus every law is a species of command and prescribes a course of conduct.

According to Austin the relationship of superior to inferior is due to the power which the superior enjoy over the inferior. i.e. the ability of the superior to punish the inferior for disobedience. A command is a wish/desire to another so that he/she shall do a particular thing or refrain from doing a particular thing. In case of non-compliance with command, he/she has to for evil consequences .the sanction behind the law is the evil which is to be influenced in the case of disobedience. He further emphasises that the law is law only if it is effective and it must be generally obeyed and every law should have a sanction of the physical force of the State. It means to call a particular body of rules as law, it should satisfy the three conditions given above.

According to this theory International Law is not a true Law. In support of their argument, they gave the following explanation:

• International Law is only opinion or sentiments current among nations.
• There being no agency for international legislation, hence International Law is not a command of sovereign or superior determinate authority.
• There is no adequate sanction behind it.
• There is no mechanism and agency to enforce International Law. Hence obligation to observe International Law reduces to a moral rules.
• The existence of the third party (determinate impartial arbitrator) which can interpret and enforce International Law is absent. The International Court of Justice cannot exercise jurisdiction if a State which is a party to a dispute has not given its consent.

Thus International Law is a body of rules governing the relation of sovereign states inter se. Hence Austin called International law as “positive international morality” similar to the rules binding club and society.

Criticism of Austin’s View:

• Austin has taken into consideration in his definition only that part of law which is enacted by sovereign legislative authority. He completely ignored the customary or unwritten laws. Thus the definition cannot be applied for Hindu, Mohammedan and the Canon law because these laws came into existence long before the state began to perform legislative functions.
• Austin’s theory says that laws are observed because of fear of sanctions behind them. Austin’s definition cannot be applied to a Modern democratic country whose machinery is employed for the result of the people. In a democratic country, the sanction behind the law is not the force of the state but the willingness of the people to obey the same.
• The Constitutional law of the country defines the power of various organs of the state. Nobody can be said to command himself.
• It is not applicable in International and Constitutional law. International law is not the command of any sovereign, yet it is considered to be law by all conserved and States themselves regard International Law as binding even when there is no sovereign.
• The main criticism of Salmond is that the theory disregards the moral or ethical elements of the law. The end of law is justice. Any definition of law without reference to justice is inadequate.

Thus Austin’s definition of law is inadequate and his inference that International law is not true law is in correct.

Oppenheim’s View:

Let us understand the nature of International law on the basis of Oppenheim’s definition.

According to Professor Oppenheim (Eighth Edition of the book International law), “Law is a body of rules for human conduct within a community which by common consent of this community shall be enforced by an external power. The main features of this definition are

• There must be a community
• There must be a body of rules for human conduct
• There must be a common consent of this community for an external power to enforce the rules

This definition is not using words sovereign or legislature. Thus it means that it is not necessary that rules should be enacted through law-making authority. Similarly existence of law administering court within the community concerned is not necessary.   

We can see that there is a community of nations in the world. There is interdependence of these nations on each other, which is the basis of formation of such community. There exist rules of conduct, based on customs of hundreds of years, International agreements and treaties. There is common consent of the community of nations for the enforcement of the rules for international conduct. Hence in the light of Oppenheim’s definion of law, International Law is a true law.

International Law is a Weak Law:

The rules of international law are not as effective as municipal law, hence International Law is weak law. Following are some reasons for such conclusion.

• International Law is a contradictory and vague mass of agreements and norms that offers few clear guidelines. Sometimes they are formulated in such a way as to give wide options to the States parties. They are not comparable in efficacy to State legislative machinery. Hans Morgenthau explains what frequently happens when negotiating international agreements: “In order to find a common basis on which all those different national interests can meet in harmony, rules of international law embodied in general treaties must often be vague and ambiguous, allowing all the signatories to read the recognition of their own national interests into the legal text agreed upon.”
• Even if we could specify the contents of international law, the absence of an effective legal system severely limits its impact. Nations rarely alter their behaviour to conform to international law. It is more likely that nations will twist international law so that it conforms to their behaviour.
• Domestic legal systems usually enjoy compulsory jurisdiction, whereas international legal bodies do not.  There is the International Court of Justice, but it does not have jurisdiction to decide the disputes of all the States since the Court acts with consent of the States only.
• Enforcement measures available under the system are not effective. If there is a dispute between two states and one of the state approaches the International court of Justice and wishes to summon the other state, then for that the other state has to accept jurisdiction of the Court for the dispute. Similarly, the Court has no power to enforce its decisions.
• During war, many times, rules of International Law are frequently violated.

Conclusion:

As per Austin’s definition International Law is not a true law but with Oppenheim’s concept it is a true law. Thus answer of the question whether International Law is a true law, depends on which definition of law we consider as a base. It should be noted that at Austin’s time international community lacked legislation, a court, sanctioning power and enforcement machinery. Hence his conclusion was that International Law is not a true law. But substantial development has taken place since the definition of law given by Austin. Many International Treaties are signed. There are organizations like United Nations. The Practice of civilized nations show that they are bound by these rules. There is International Court of Justice to solve international level disputes or disputes between states. If party to the dispute fails to perform its obligation, the Security Council of the United Nations has power to enforce the decision of the Court. In the light of these changes we can say that International Law is a true law. But the rules of international law are not as effective as municipal law, hence International Law is weak law.

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