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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