2.

Corfu Channel Case, ICJ Reports, 9 April 1949

FACTS:
On October 22nd 1946, His Majesty’s ship Saumarez and Volage were damaged by a
minefield of anchored automatic mines in the international highway of the Corfu Strait
which resulted in the death and injuries of 44 people and 42 personal injuries to British
officers and men. An application was then filed by the government of the United Kingdom
of Great Britain and Northern Irelands against the government of the People’s Republic
of Albania. The Court (ICJ) was then notified by the agents of the parties of a Special
Agreement which states both the contention of the parties. 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.
The United Kingdom alleged that the minefield was laid between May 15th and October
22nd with the connivance and knowledge of the Albanian Government. That the
government knew that the said minefield is within its territorial waters, and that the
Albanian Government did not notify the existence of these mines as required by the
Hague Convention VIII of 1907 in accordance with the general principles of international
law and humanity. They further alleged that 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 favor of foreign vessels (whether warships
or merchant ships) through such an international highway. They further demand
reparation and compensation from the Albanian Government for the breach of its
obligations under international law.
The Albanian government, on the other hand, contends that it was not proven that the
mines that caused the explosion were laid by them, nor by a third power on behalf of
them. The government even denied that they had prior knowledge of the minefield’s
existence and it was not proven by the other party either. The Albanian government claims
that it has no prior knowledge that it is within its territorial waters, hence, they do not owe
the government of United Kingdom any compensation. They further claimed that foreign
warship should obtain authorization from their government and that 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.

ISSUE:
1. Whether or not Albania is responsible under international law for the explosions which
occurred in Albanian waters. (Yes)
2. Whether or not 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. (No)
RULING:
1. 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.
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 downed 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. The Court must examine
therefore whether it has been established by means of indirect evidence that Albania has
knowledge of minelaying 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.
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.
The Albanian Government's knowledge consists in the fact that that Government did not
notify 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. 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.
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.
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 defenses.
On this subject, it must first be said that the minelaying operation itself must have required
a certain time. 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
meters; the minelayers must have passed at not more than about 500 meters from the
coast between Denta Point and St. George's Monastery. This issue, however, was
submitted to the opinion of experts.
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. The
obligations resulting for Albania from this knowledge are not disputed between the
Parties.
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. VTII, 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.
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.
2. It is shown by the Admiralty telegram of September 21st 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.
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.
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.
The Albanian Government contends that the guns in the ships were not consistent with
the rule of innocent passage which the Court justified through examining and explaining
the details thoroughly.
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.