Analysis of Corfu Channel Case

Authors:

Sumeet Senapati, SOA National Institute of Law, Bhubaneswar

Himanshu Rana, School of law Christ University

Editor:

Sri Sai Kamalini, School of Law, Sastra University, Chennai



Law of the sea in public international law

Let’s first try to understand what is the law of the sea, the term can be very well understood from itself that a law, which is the rules and regulation that are sanctioned by proper authority for the sea. Law of the sea is a branch of international law, as it is very observed and well settled that no country owns a sea, and it is a collective property and belongs to no one. One of the other reasons why the international law emphasis on the laws o sea is due to the united nations convention on the law of the sea, which was the authority that codified the public order at sea. “The united nations conference on the law of the sea (UNCLOS) met in Geneva on 28 July to wind up its ninth life… agreement has been reached on most of the nearly 400 articles on the agenda.”[1]

The provisions of this convention settle about the country’s sovereign territorial waters beyond its coast as to be the maximum of 12 nautical miles, which is about 22 km, with giving a direct allowance of the ‘right of innocent passage’ to the foreign bodies. “Passage is innocent as long as a ship refrains from engaging in certain prohibited activities, including weapons testing, spying, smuggling, serious pollution, fishing, or scientific research. Where territorial waters comprise, straits used for international navigation (e.g., the straits of Gibraltar, Mandeb, Hormuz, and Malacca), the navigational rights of foreign shipping are strengthened by the replacement of the regime of innocent passage by one of transit passage, which places fewer restrictions on foreign ships. A similar regime exists in major sea-lanes through the waters of archipelagos”[2]

Further beyond this, it was also decided in the convention about the faith of the sea, bifurcating it into 3 classifications, i.e., first, territorial sea up to 12 nautical miles; second, exclusive economic zone up to 200 nautical miles; third, beyond 200 nautical miles the High sea.

The Exclusive Economic Zone (EEZ) extends 200 nautical miles from the shore, which is about 370 km, well within this zone, the coastal shore’s country was given the right to use or even exploit and utilise the sea’s resources for various purposes such as the generation of energy from the waves, collecting and having exclusive right over the oil, gas, and natural resources. Moving ahead, concerning the seabed beyond this is the high sea, this part denotes all the area of the sea that is not included in the Exclusive Economic Zone of any state. “The rule was formulated in 1609 by Grotius in his treatise mare liberium by arguing that the sea cannot be owned. Hence, all states whether coastal or landlocked shall be free to exercise therein the freedom of navigation, of overflight, of immersion, of fishing and of constructing artificial islands etc.”[3] Although there is the certain alteration to this by the virtue of Article 87(2) which with regards to high sees stated that “shall be exercised with due regard for the interests of other States in their exercise of the freedom of high seas.”

The international sea laws made by the 1982 convention contains detailed and precise regulations. Well, there is also a specialized agency of United Nations (UN) concerning this, i.e., International Maritime Organization (IMO), IMO has adopted a strict anti-pollution standard, and also several treaties being adopted under it. For the implementation in case of a dispute, the United Nations has set up UN International Tribunal for the law of the sea at Hamburg, Germany to settle the matters by arbitration or by the CJI.

Corfu Channel Case Analysis

Abstract

The aim is to analyze the Corfu Channel Case, the first case before the International Court of Justice, concerning damage to British Navy Ships due to mines in Albanian waters.

Petitioner: Albania

Respondent: United Kingdom

Issues: Sovereignty in the territorial sea; an innocent passage of warships Forum: International Court of Justice (ICJ) Date of Decision: 25 March 1948 (Preliminary Objection) 9 April 1949 (Merits) 15 December 1949

Citation: I.C.J.1949I.C.J 4. 22 Forum: International Court of Justice (ICJ)

Date of Judgement

Ø 25 March 1948 (Preliminary Objection)

Ø 9 April 1949 (Merits)

Ø 15 December 1949 (Amount of Compensation Assessment)

Synopsis of Rule of Law

International obligations in peacetime are created through elementary consideration.

Facts

On May 15 1946, two British warships crossed the Corfu Channel and came under fire from Albanian fortifications. Albania refused the UK’s demand for an apology. In an exchange of notes, the UK took the position that warships could pass through the channel without Albania’s advance consent. Albania maintained that its advance permission was needed. On October 22, 1946, three British ships crossed the Corfu Channel, with the express instruction to test Albania’s reaction to their alleged right of innocent passage. The crews were to respond if attacked. The UK considered the channel to be free of mines, having swept the channel for mines in 1944 and again in 1945. Two British ships struck mines in the channel and were heavily damaged. British sailors died and were injured. No fire came from Albanian coastal batteries, and Albania sent out a ship waving a white flag.

On November 13, 1946, the British navy carried out a unilateral mine-sweeping and evidence-gathering operation within Albanian territorial waters (Territorial Sea). While the UK had announced these operations in advance, Albania had not authorized them and protested strongly.

On April 9, 1947, the United Nations, Security Council, by resolution, recommended that the dispute be referred to the ICJ without delay. Albania was not a member of the United Nations at that time and was invited to be represented in the Council. Both countries accepted the resolution. On May 22, 1947, the UK unilaterally instituted proceedings. Albania strongly protested against the unilateral invocation of the court’s jurisdiction and argued that under the ICJ Statute, a compromise between the two disputants was necessary to vest jurisdiction in the ICJ ( International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State).

However, Albania’s letter of protest emphasized that notwithstanding the UK’s unilateral application, it was prepared to exceptionally appear in court in this case, without creating a precedent for the future. Albania objected to the court’s jurisdiction. After the court’s judgment on the jurisdiction, Albania and the UK concluded a compromise. They called on the court to decide whether Albania was responsible for the explosion and whether the UK’s mine-sweeping operation violated Albania’s sovereignty. This compromise formed the basis of the merit and damage phases of the proceedings.[4]

Issues

ü Whether Albania was responsible under international law for the explosions that occurred on 22 October 1946 in Albanian waters, for the resulting damage and loss of human life and payment of any compensation.

ü Whether the United Kingdom had violated the sovereignty of Albania under international law because of the acts of the Royal Navy in Albanian waters on 22 October and 12 and 13 November 1946 and if there was any duty to give satisfaction.

ü Whether the minesweeping operation by the British Government in Albanian waters had violated the sovereignty of Albania.

ü If the Court found that it had jurisdiction to do so, to assess the amount of compensation.[5]

Judgement

In its Judgement of 25 March 1948, the Court considered that the Albanian letter of 2 July 1947 constituted a voluntary and indisputable acceptance of the Court’s jurisdiction and declared that unilateral applications to the Court were possible, even though no compulsory jurisdiction existed.

In its Judgment of 9 April 1949, the Court considered Albania’s attitude before and after the event of 22 October 1946 and the feasibility of observing the laying of mines from the Albanian coast. The Court found that the factual evidence presented made it improbable that the Albanian authorities had been unaware of the mine-laying in Albanian waters. The Court further stated that the presumed knowledge of the Albanian Government entailed its obligation to notify “for the benefit of shipping in general, the existence of a minefield in Albania territorial waters and in warning the approaching British warships of the imminent danger to which the minefield exposed them”. Such obligations, stated the Court, “were based 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”.

The Court held that the United Kingdom had not violated Albanian sovereignty by sending warships through the strait without the prior authorization of the Albanian Government. In this connection, the Court made an important pronouncement on the question of innocent passage through straits, stating that it is “generally recognized, and following 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”.

The Court held that the Corfu Channel was such a strait and that the passage of the British warship on 22 October 1946 was innocent. As for the contentions of the Albanian Government concerning measures taken by the United Kingdom during the passage, the Court, taking into account the evidence presented, was unable to characterize those measures as a violation of Albania’s sovereignty.

As regards the minesweeping operation, the Court could not accept the United Kingdom’s line of defence. The “right of intervention” mentioned by the United Kingdom is regarded by the Court as a manifestation of a policy of force and therefore inadmissible because it would be reserved for the most powerful States. The Court was also unable to accept the notion of “self-help” since the respect for territorial sovereignty between independent States is an essential foundation of international relations.

Consequently, the Court declared that the action of the Royal Navy constituted a violation of Albanian sovereignty. The Court concluded that it had jurisdiction to assess the amount of compensation. The conclusion of the Special Agreement by the Parties had the main objective of establishing complete equality between them by replacing the original procedure based on a unilateral application with a procedure based on a Special Agreement. There was no suggestion that this change of procedure was intended to involve any change concerning the merits of the British claim, as originally presented, including the claim for a fixed sum of compensation. Although the Albanian Government disputed the jurisdiction of the Court to assess the amount of compensation, the Court decided in favour of the British claim and considered it well-founded in fact and law.[6]


[1]Walsh, John. “Law of Sea Conference Still in Deep Water.” Science, vol. 209, no. 4457, 1980, pp. 666–666. JSTOR, www.jstor.org/stable/1684345. Accessed 30 Oct. 2020. [2] Robing churchill, Law of the Seainternational law [1982], (29 October 2020), https://www.britannica.com/topic/Law-of-the-Sea [3] Mayank Shekhar, Law of The Sea – History, Evolution and Provisions, https://www.legalbites.in/public-international-law-notes-law-of-sea/ [4] Michael Waibel ,Corfu Channel Case,26th October 2020, file:///C:/Users/GEW/Downloads/SSRN-id1919599.pdf Corfu Channel Case [5] https://www.slideshare.net/utkarshk02/this-entry-analyses-the-corfu-channel-case-the-first-case-before-the-international-court-of-justice-concerning-dammage-to-british-navy-ships-due-to-mines-in-albanian-waters [6] Corfu Channel,30th Oct 2020, https://en.wikipedia.org/wiki/Corfu_Channel_case

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