(Merits)
International Court of Justice
April 9, 1949
General List No. 1
*4 International
responsibility for explosion of mines in territorial waters.-Connivance with
another State; evidence.-Minelaying by
persons unknown.-Knowledge of minelaying by State party to proceedings: control of territory as ground for
responsibility; its influence on the
choice of means of proof; indirect
evidence, concordant inferences of fact.-Breach of obligations resulting from
knowledge of minelaying, grounds for responsibility.-Court's jurisdiction to
assess amount of compensation; interpretation of Special Agreement; subsequent attitude of Parties.
Right of passage of
warships in time of peace through straits connecting two parts of the high
seas.-International custom.-Straits in which right of passage exists.-North Corfu Channel.-Innocent
passage; purpose of passage and manner
of its execution.-Production of documents at Court's request; refusal to produce; Article 49 of Statute of Court and Article
54 of Rules.-Minesweeping undertaken in territorial waters contrary to wish of
territorial State; justification derived from theory of intervention and notion
of self-help.- Violation of territorial sovereignty; international responsibility; satisfaction in form of a
declaration by the Court of violation of right.
Judgment
Present: Acting President
GUERRERO; President BASDEVANT; Judges ALVAREZ, FABELA, HACKWORTH,
WINIARSKI, ZORICIC, DE VISSCHER, Sir Arnold MCNAIR, KLAESTAD, BADAWI PASHA,
KRYLOV, READ, HSU MO, AZEVEDO; M. ECER,
Judge ad hoc.
*5 In the Corfu Channel case,
between
the Government of the
United Kingdom of Great Britain and Northern Ireland, represented by:
Sir Eric Beckett, K.C.M.G., K.C., Legal Adviser to the Foreign
Office, as Agent and Counsel, assisted by
The Right Honourable Sir Hartley
Shawcross, K.C., M.P., Attorney-General, replaced on November 15th, 1948, by
Sir Frank Soskice, K.C., M.P., Solicitor-General;
Mr. C. H. M. Waldock, Professor of international law in the University
of Oxford,
Mr. R. O. Wilberforce,
Mr. J. Mervyn Jones, and
Mr. M. E. Reed (of the Attorney-General's Office), members of the
English Bar, as Counsel,
and
the Government of the People's Republic of Albania, represented
by:
M. Kahreman Ylli, Envoy Extraordinary and Minister Plenipotentiary
of Albania in Paris, as Agent, replaced on February 14th, 1949, by
M. Behar Shtylla, Envoy Extraordinary and Minister Plenipotentiary
of Albania in Paris, assisted by
M. Pierre Cot, Professeur agrege of the Faculties of Law of
France, and
Maitre Joe Nordmann, of the Paris Bar, as Counsel; and
Maitre Marc Jacquier, of the Paris Bar, and
Maitre Paul Villard, of the Paris Bar, as Advocates.
THE COURT,
composed as above,
delivers the following judgment:
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
*6 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.
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 the 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.'
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 *7 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 25th, 1948, be maintained. The
Court confirmed this order and these time-limits.
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.
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.
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, K.C., 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:
*8 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;
Called by Albania:
Captain Ali Shtino,
Albanian Army, as witness;
First Captain Aquile
Polena, Albanian Army, as witness;
Xhavit Muco, 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.
Documents, including maps,
photographs and sketches, were filed by both Parties, and on one occasion by
the Parties jointly, both as annexes 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 1, 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.
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 *9 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].
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
Norwegian Navy, Commodore S. A. Forshell of the Royal Swedish Navy, 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.
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.
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 (1) of the Special Agreement.
On behalf of the United
Kingdom:
'The Government of the
United Kingdom asks the Court in this case to adjudge and declare as follows:
*10 (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 1907 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 18 of the Memorial and the Annexes thereto;
*11 (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
aforesaid;
(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. Saumarez .............................. pounds
sterling750,000
Damage to H.M.S. Volage ................................................
75,000
Compensation for the pensions and other expenses
incurred by the Governm
ent of the United Kingdom in
respect of the deatHS AND
injuries of naval personnel ................ 50,000
----------------------
pounds
sterling875,000'
----------------------
On behalf of the Albanian
Government:
'(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.
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:
*12 '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.'
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.'
* * *
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?'
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 *13
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.
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.
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.
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.
The United Kingdom
Government contended that the mines which struck the two ships on October 22nd
were part of this minefield.
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.
On the evidence produced,
the Court finds that the following facts are established:
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, *14
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.
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 9 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.
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.
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 1944 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.
*15 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.
* * *
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.
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.
The Court considered first
the various grounds for responsibility alleged in this submission.
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 BY 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 *16 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.
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 the 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.
In these circumstances,
the Court need pay no further attention to this matter.
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.
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.
Without deciding as to the
personal sincerity of 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 *17 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.
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.
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.
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.
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.
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.
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 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
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.
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.
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 *19 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 want 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.
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.
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.
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.'
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.
Another indication of the
Albanian Government's knowledge consists in the fact that that Government did
not notify the *20 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.
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.
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.
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.
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.
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:
*21 '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.'
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 minelaying having been observed by the Albanian look-out
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 670 metres and remained visible up to about 1,900
metres.
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 9 to
the United Kingdom Memorial must have been noticed by these coastguards.'
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 *22
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.
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. 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....'.
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.
In fact, Albania neither
notified the existence of the minefield, nor warned the British warships of the
danger they were approaching.
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.
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 *23 be that a general
notification to the shipping of all States before the time of the explosions
would have been difficult, perhaps 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.
In fact, nothing was
attempted by the Albanian authorities to prevent the disaster. These grave omissions involve the
international responsibility of Albania.
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.
* * *
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 pounds sterling875,000.
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.
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?
This text gives rise to certain doubts. If point (i) is answered in the affirmative, it follows from the
establishment of responsibility *24 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'
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.'
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 *25 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, iled previously, 'with statements and submissions'. These submissions included the claim for a
fixed sum of compensation.
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.
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?'
The Albanian Government
has not disputed the competence of the Court to decide what kind of
satisfaction is 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, *26 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....'
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.
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.
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.
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.
* * *
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?'
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.
*27 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'.
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.
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 *28 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 Leander and two destroyers should do so when they
departed from Corfu on October 22nd.
It was in such
circumstances that these two cruisers together with the destroyers Saumarez and
Volage were sent through the North Corfu Strait on that date.
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.
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.
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.
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 *29 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.
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.
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.
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.
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 *30 the Strait without having obtained the previous
authorization of the Albanian Government.
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.
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.
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 diplomatic 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.
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.
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, *31 and that they were not manoeuvring until after
the first explosion. Their movements
thereafter were 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.
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 peace 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 antiaircraft 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.
In the above-mentioned
telegram of October 26th, theCommander-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, be 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.
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 *32 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.
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 to 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.
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.
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.
* * *
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.
*33 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 12th, 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 should 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.
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.
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 *34 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.
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.
The Court does not
consider this argument convincing.
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.
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.
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.
*35 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.
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 co stituted a violation of Albanian
sovereignty.
This declaration is in
accordance with the request made by Albania through her Counsel, and is in
itself appropriate satisfaction.
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.
*36 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.
*37 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 *38 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.
FN FNM11 The list of
documents in support produced by the Parties and accepted by the Court will be found in annex 1 to this
Judgment.
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
Court, and the Experts' replies of February 12th.
*39
INDIVIDUAL OPINION BY JUDGE ALVAREZ.
[Translation.]
I am in agreement with the
Judgment delivered by the Court, but I feel that it is desirable to give
prominence to certain considerations of a legal character in support of that
Judgment.
I.
The cataclysm through
which we have just passed opens a new era in the history of civilization; it is of greater importance than all those
that preceded it: more important than that of the Renaissance, than that of the
French Revolution of 1789 or than that which followed the first World War; that is due to the profound changes which
have taken place in every sphere of human activity, and above all in
international affairs and in international law.
It is therefore necessary to consider what is the present state of
that law. We must examine it in
connexion with the questions raised by the dispute submitted to the Court. That does not mean that this Court should
pronounce on all the legal issues which those questions connote; but it seems desirable that one of the
judges, at least, should examine them, and that is the task I have set myself
in this individual opinion.
II.
Among the different legal
issues relating to the present dispute, I shall concern myself with the
following seven:
A.-The law which the Court has to apply.
B.-The importance of politics, of force and of public opinion in
regard to the exercise of the rights of States.
C.-The sovereignty of States.
The new conception of that sovereignty.
D.-The responsibility of States.
The different aspects of that responsibility presented in the dispute
before the Court.
E.-The passage of merchant ships and warships of one State through
the territorial waters of another State, and also through straits. Present position of this question.
F.-Intervention, acts of force, violations of sovereignty.
All of the above are
either old subjects presented under new aspects, or entirely new subjects. They all belong to what has been termed the
new international law.
*40 I will now examine these different points on
broad lines, but without indicating their respective application to the present
dispute, for that has been adequately dealt with in the Judgment.
III.
In the individual opinion
which I appended to the Advisory Opinion delivered by the International Court
of Justice on May 28th, 1948, I pointed out that, in consequence of profound
changes that had taken place in international relations, a new international
law had arisen; it is founded on social
interdependence. In that opinion I
described the characteristics of this new law.
Briefly, it is the realization of social justice. It is entirely different from the old law,
which was strictly juridical; it
approaches nearer to the notion of equity, without however being merged in
it. This new international law is not a
lex ferenda, as is often believed; it
has a real existence and it has essential and actual foundations-for instance,
in the new regime of social interdependence which is coming into being, in the
Charter of the United Nations and in other spheres
which need not be enumerated. It often
comes into collision with the old international law.
What is the law that the
Court should apply? Is it that which
existed until the cataclysm of 1939? Or
must the Court remodel that law, bring it-so to speak-up to date and into
harmony with the new conditions of social and international relations? (New international law.)
It is generally believed
that the function of the Court is simply to apply the existing international
law, without considering whether or not it corresponds to these new conditions,
and that if the Court were to remodel the law it would be really assuming the
task of a legislator.
But the present Court has
a new mission which was not conferred-at least not expressly-on the Court which
preceded it. For the Charter of the
United Nations has instructed the General Assembly in Article 13 to 'encourage
the progressive development of international law and its codification'. And, with a view to obtaining these results,
the Assembly in its Resolution 171 of 1947 expressed the desire that the
International Court of Justice should develop this law, in other words should
bring it up to date.
The Court has thus, at the
present moment, three functions:
(a) the former function,
which consisted in elucidating the existing law, and in defining and confirming
it;
(b) that of modifying, in
conformity with the existing conditions of international
relations, provisions which, though in force, have become out of date;
(c) that of creating and
formulating new precepts, both for old problems where no rules exist and also
for new problems.
*41 The two latter functions of the Court have
their origin in the fact that international life is in a state of constant
evolution, and that international law must always be a reflection of that life. In exercising these functions the Court must
not proceed arbitrarily, but must gain its inspiration from the great
principles of the new international law.
The following two examples
may serve to illustrate the correctness of what I have just said. Suppose that the Security Council of the
U.N.O. decided to take measures of coercion against a State and, with that
object, despatched warships, belonging to different countries-for the U.N.O.
has no naval forces of its own. If this
international squadron desired to pass through the territorial waters of
certain States, the latter cannot do anything to impede its passage, under any
pretext, not even if their national laws required a previous authorization, or
other formalities. Here we have
something new, the passage of an international force, which is surely entitled
to pass freely everywhere. If a dispute
arising out of this fact were referred to the Court, it would be quite
inadmissible for it to rule that this international force must comply with the
national legislation of the coastal States.
Coming next to the second example, also of a decisive
character: we are all familiar with the
well-established doctrine in international law of the clause known as rebus sic
stantibus, according to which a State may refuse to execute a treaty if the
conditions which prevailed at the time of signature have substantially
changed. That doctrine is so just that
it has begun to find its way into private law.
But the power of the Court to remodel international law is merely the
application in every branch of that law of the doctrine of the clause rebus sic
stantibus; the principle at the root of
it is the same: it is a principle of
social justice.
The Court is therefore
confronted with this dilemma: should it
strictly apply the rules of the existing law, even if they are obsolete and
might lead to injustices or to settlements which might be found unacceptable,
or should it review these rules, as has just been explained? In my opinion there is only one answer.
IV.
The law of social
interdependence does not place law in opposition to politics, as has been done
hitherto; on the contrary, it admits
that there are close relations between them.
Jurists, imbued with
traditional law, have regarded international law as being of a strictly juridical character; they only consider what they describe as
pure law, to the entire exclusion of politics as something alien to law. But pure law does not exist: law is the result of social life and evolves
with it; in other words, it is, to a
large extent, the effect of politics- especially of a collective kind-as
practised by the States. We must
therefore beware of *42 considering law and politics as mutually
antagonistic. Each of them should be
permeated by the other.
Politics and public
opinion exercise a great influence on the exercise of the rights of
States. Different cases may arise; some of them have arisen in the present
dispute:
A.-A State possesses an
unquestionable right vis-a-vis another State, but is unwilling to exercise it
for different political reasons, perhaps because it wishes to maintain good
relations with the said State.
B.-A State possesses a
right vis-a-vis another State, but the latter disputes it. May it support its right by the use of
force? And may the other State, for its
part, resist by employing force in its turn?
C.-A State has a right
which it is entitled to exercise in the territory of another State, e.g., the
right of passage. May it support that
right by force if it is disputed? And
may the other State, in its turn, resist by force?
D.-The rights of two
States are in conflict; this results,
to a large extent, from the individualist regime which admits hardly any
limitations to the rights which it
recognizes. How are such conflicts to
be resolved?
E.-A State does not
possess the right to perform certain acts in the territory of another State,
but its vital interests, or the general interest, impel it to perform these
acts, thus violating the sovereignty of the other State and international law.
F.-A State fears that it
may be the victim of aggression by another State, or entertains a legitimate
fear that the latter intends to prevent it from exercising one of its
rights. May it employ the threat of
force, or even force itself, as a precautionary measure, to prevent this
aggression or the violation of its right?
G.-A State acts in
legitimate self-defence.
In all these situations,
political considerations will play a very important part in the attitude of the
States concerned. These States will
have to show great regard for public opinion.
The Charter of the U.N.O.
(para. 4 of Art. 2) forbids the employment of force except in case of
legitimate self-defence (Art. 51).
Consequently, a State which is in one of the situations mentioned
above-except in those mentioned in paragraphs A and E-must have recourse, not
to force but to the Security Council or to the International Court of Justice.
Here we see clearly the
difference between the old and the new international law.
It may be observed, incidentally, that in spite of the prohibition
of the use of force in the Charter of the United Nations, it is still possible,
in certain cases, for force to produce juridical effects: for example, acquisitions made by the victor
after a war, the independence *43 of colonies, the secession of States,
such secession being subsequently recognized by the mother countries or by
U.N.O. I will not dwell longer on this
subject, which is so largely of a psychological character, as it is outside the
scope of these observations.
V.
Questions which concern
the sovereignty of States deserve special consideration, for the main issues in
the present dispute have their primary origin in that notion or will affect it.
By sovereingty, we
understand the whole body of rights and attributes which a State possesses in
its territory, to the exclusion of all other States, and also in its relations
with other States.
Sovereignty confers rights
upon States and imposes obligations on them.
These rights are not the
same and are not exercised in the same way in every sphere of international
law. I have in mind the four
traditional spheres- terrestrial, maritime, fluvial and lacustrine-to which
must be added three new ones-aerial, polar and floating (floating
islands). The violation of these rights is not of equal gravity in all these
different spheres.
Some jurists have proposed
to abolish the notion of the sover-eignty of States, considering it
obsolete. That is an error. This notion has its foundation in national
sentiment and in the psychology of the peoples, in fact it is very deeply
rooted. The constituent instrument of
the International Organization has especially recognized the sovereignty of
States and has endeavoured to bring it into harmony with the objects of that
Organization (No. I of Art. 2).
This notion has evolved,
and we must now adopt a conception of it which will be in harmony with the new
conditions of social life. We can no
longer regard sovereignty as an absolute and individual right of every State,
as used to be done under the old law founded on the individualist regime,
according to which States were only bound by the rules which they had
accepted. To-day, owing to social
interdependence and to the predominance of the general interest, the States are
bound by many rules which have not been ordered by their will. The sovereignty of States has now become an
institution, an international social function of a psychological character,
which has to be exercised in accordance with the new international law.
VI.
Like sovereignty, the responsibility of States is an ancient
conception and holds a very important place in international law. It *44 is a delicate matter, and is a
constant subject of controversies, because it is not regulated by any
well-established precepts. That was
very evident at the Codification Conference at The Hague in 1930.
It is therefore necessary
that this question of responsibility should be more closely defined, in its
most essential features, and that it should even be restated.
In undertaking such a
restatement, in regard to the matters at issue in the present dispute, the
Court might be guided by the following considerations, based on the law of
social interdependence:
(1) Every State is bound
to preserve in its territory such order as is indispensable for the accomplishment
of its international obligations: for
otherwise its responsibility will be involved.
(2) Every State is bound
to exercise proper vigilance in its territory.
This vigilance does not extend to uninhabited areas; and it is not of the same nature in the
terrestrial part of the territory as in the maritime, aerial or other parts.
This obligation of
vigilance varies with the geographical conditions of the countries and with
other circumstances: a State exercises
greater vigilance in certain areas than in others, according to its
interests. Moreover, this vigilance depends on the means available to a
given State. In America this question
has become very important: the United
States and many of the Latin countries are unable to exercise effective vigilance
over the whole vast extent of their coasts.
As has been very rightly laid down in Article 25 of the Hague Convention
XIII of 1907, a Power is not obliged to exercise greater vigilance than is
consistent with the means at its disposal.
A State which fails to
exercise this vigilance, or is negligent in its exercise, will find its
responsibility involved in case of injury caused in its territory to other
States or to their nationals.
(3) As a consequence of
the foregoing, every State is considered as having known, or as having a duty
to have known, of prejudicial acts committed in parts of its territory where
local authorities are installed; that
is not a presumption, nor is it a hypothesis, it is the consequence of its
sovereignty. If the State alleges that it was unaware of these acts, particularly
if they occurred in circumstances in which vigilance was unavailing-e.g., by
the action of submarines, etc.-it must prove that this was the case, for
otherwise its responsibility is involved.
(4) Every State is bound
to take preventive measures to forestall the execution in its territory of
criminal or prejudicial acts to the detriment of other States or of their
nationals; and if such acts are
committed it is bound to punish the offenders.
(5) Every State is bound to elucidate immediately the
circumstances in which a criminal or prejudicial act was committed in its
territory, and in particular to institute enquiries.
*45 (6) The State is bound to give immediate
information to countries that are concerned regarding the existence in its
territory of dangers, resulting from the action of other States, that have been
brought to its knowledge, and which might cause injury to the said
countries; if it fails to do so it
becomes guilty of complicity.
There are at present in
international law three notions of major importance, which are quite distinct
but have points in common and apt to be confused with one another, as they all
relate to damage suffered by a State generally in the territory of another
State owing to the negligence of the latter, for which compensation is
claimed. These three notions are
international delinquencies, prejudicial acts and unlawful acts.
The characteristics of an
international delinquency are that it is an act contrary to the sentiments of
humanity. In consequence of the demands
of the juridical consciousness of the peoples, there is now a tendency to
introduce the notion of delinquency as a fundamental precept of international
law.
The following acts are to
be considered as international delinquencies:
(a) acts contrary to the
sentiments of humanity committed by a State in its territory, even with the
object of defending its security and its vital interests; for instance, the laying of submarine mines
without notifying the countries concerned;
(b) acts contrary to the
sentiments of humanity committed by a State, and causing damage in the
territory of another State with the latter's consent. The latter State is
considered as an accomplice;
(c) acts contrary to the
sentiments of humanity committed in the territory of a State by another
country, without the consent of the first named State but of which that State
knew, or had the duty of knowing, and which resulted in damage to a third
State. Such knowledge does not suffice
to constitute a delinquency: that term
would only be applicable if the State had failed to notify the countries
concerned of the act in question.
A prejudicial act is one
which causes prejudice to a State or to its nationals, but which does so by
means of acts not constituting an international delinquency, e.g., as a
consequence of an insurrection, civil war, etc. This act does not involve the responsibility of the State in
whose territory it was committed, unless the latter State failed to take the
necessary action to prevent its execution or to punish the offenders.
An unlawful act is one
which disregards or violates the rights of a State, or which is contrary to
international law, to a treaty, etc.:
e.g., the violation of frontiers, the non-execution of a convention,
etc. The responsibility of the State
which committed it varies according to the nature of the act.
Special attention must be drawn to five categories of unlawful
acts, or acts contrary to international law, which are related to the *46
present dispute: intervention, pressure
or threat of force, demonstration of force, with a view to intimidation, violation
of sovereignty, and misuse of right to which I will return later.
The responsibility of a
State may be limited. It may also be
attenuated by certain circumstances, e.g., by the fact that the State was
acting in the general interest, or that it took all proper precautions to
prevent other States or their nationals from suffering injury in its
territory. But in the case of
international delinquency there cannot be extenuating circumstances.
In the preceding examples
we see clearly the difference between the former individualistic law and the
new law of social interdependence.
VII.
The passage of the
merchant ships or warships of a State through the territorial waters of another
State, or through straits situated therein and affording communication between
two areas of open sea, is a matter of high importance. We are concerned only with passage in time
of peace, for in regard to passage in war time there must be special rules
adapted to the new juridical status of war.
In the present dispute, the Parties have admitted, in conformity
with current doctrine, that the passage of the merchant ships of one State
through the territorial waters of another State, including the waters of straits
uniting two portions of open sea, is free.
But the question whether the same rule applied to the passage of
warships was keenly debated: the
Albanian Government's Agent maintained that the coastal states might regulate
the passage of these ships, a view which was contested by the Agent for the
United Kingdom.
The Atlantic Charter of
1941 laid down the freedom of the seas and oceans as a fundamental
principle. On January 1st, 1942, the
united nations signed a Declaration in which they accepted the principle. Article 3 of the Charter of the United
Nations alludes to that Declaration.
Public opinion, also, is favourable to the freedom of the seas; it may therefore be said to form part of the
new international law.
Consequently, it may be
accepted that, to-day, the passage through the territorial sea of a State, or
through straits situated therein, and also through straits of an international
character, is not a simple tolerance but is a right possessed by merchant ships
belonging to other States. For these
ships are discharging a peaceful mission and are contributing to the
development of good relations between peoples.
The position is not the
same in the case of warships. As war
has been outlawed henceforward, the mission
of these ships can only be to ensure the legitimate defence of the countries to
which *47 they belong.
Therefore, although they may effect an innocent passage through straits
forming an international highway between two free seas, in other cases the
coastal States are entitled to regulate the passage, especially with a view to
the protection of their own security or interests, but they are not entitled to
forbid it.
Warships only enjoy an
unrestricted right of passage when they are engaged in an international mission
assigned to them by the United Nations, as was stated above.
VIII.
In connexion with the
passage of the British warships through the Albanian territorial waters on
October 22nd, 1946, and on November 12-13th of that year, the subjects of
intervention, demonstrations of force with a view to intimidation, violation of
sovereignty, etc., were debated at some length, and it seemed at times that
these notions were confused with one another.
The intervention of a
State in the internal or external affairs of another- i.e., action taken by a
State with a view to compelling another State to do, or to refrain from doing,
certain things-has long been condemned.
It is expressly forbidden by the Charter of the United Nations. The same applies to other acts of force, and even to a threat of force.
The Agent for the United
Kingdom contended that the minesweeping operation known as 'Retail', undertaken
by the British ships in the Corfu Strait, was a justifiable act of self-help. That is not correct; the operation was in fact a violation of
Albanian sovereignty.
The Court must reaffirm,
as often as the occasion arises, that intervention and all other kinds of
forceable action are not permissible, in any form or on any pretext, in
relations between States; but the Court
may excuse such acts in exceptional circumstances.
IX.
Formerly, the misuse of a
right had no place in law. Anyone could
exercise his rights to their fullest extent, even if the effect was prejudicial
to others; in such cases there was no
duty to make reparation.
That is no longer the
case: some civil codes, especially
those of most recent dates, expressly forbid the misuse of right in private
relations. The German Civil Code lays
down in Article 226: 'The exercise of a
right is forbidden when it can have no other object than to cause injury to
others.' And the Swiss Civil Code, in
Article 2 of the preliminary chapter, declares: 'Everyone is bound to exercise his rights and to discharge his
obligations according to *48 the
rules of good faith. The manifest
misuse of a right is not protected by the law.'
I consider that in virtue
of the law of social interdependence this condemnation of the misuse of a right
should be transported into international law.
For in that law the unlimited exercise of a right by a State, as a
consequence of its absolute sovereignty, may sometimes cause disturbances or
even conflicts which are a danger to peace.
Clashes of rights and interests are causes of social unrest and even of
wars.
In this matter there are
two questions to be determined: (a)
when is there a misuse of a right; and
(b) what should be the penalty? In
regard to the former point, the facts must be evaluated in any given case; and in regard to the penalty, this may consist,
according to the circumstances, of an apology, a rebuke or even compensation
for the injury caused.
The misuse of a right-in
the same way as responsibility-admits of extenuating circumstances, for
instance, if the misuse of the right was committed for the general advantage,
etc.
(Signed) ALEJANDRO ALVAREZ.
*49
DISSENTING OPINION BY JUDGE WINIARSKI.
I cannot accept the first
part of the Judgment, because I do not agree with the juridical foundation
given by it to Albania's responsibility.
I, like the Court, cannot
admit the first argument of the United Kingdom: that Albania had direct knowledge of the existence of the
minefield, if it is not first established that she had knowledge of the
minelaying. I agree with the Court's
reasons for rejecting the second argument, that Albania laid the minefield, and
for considering that the indirect evidence produced by the United Kingdom
Government is not decisive proof either that mines were laid by Yugoslav
vessels in Saranda Bay, or of collusion between the two Governments.
In finding that Albania
was responsible, the Court accepted the United Kingdom's third argument, to the
effect that the mines cannot have been laid without the Albanian Government
having knowledge; if that be admitted,
then, as Albania did not give notice of the existence of the minefield and did
not warn the British warships that were approaching, her responsibility is
involved.
This conclusion does not
seem sound, for the same reasons that prevented the Court from admitting
collusion: such an exceptionally grave
charge against a State, as the Court has rightly said, would require a degree
of certainty that has not been reached here.
To reply to the question
whether Albania really knew of the minelaying, the manner in which the events occurred must be
considered.
The secret operation could
have been seen by the inhabitants of Saranda;
but the town is rather far from the spot in question, and it would be
difficult to admit that the operation could have been noticed and recognized as
such, if it had been carried out during the night, and if the most elementary
precautions had been taken. It could
have been seen by the coastguard. Very
naturally no evidence was produced on this subject. The experts of the Parties appeared to be in agreement on the
general conditions under which the operation could have been seen and
heard; but they did not agree in
determining with some accuracy the influence of the conditions under which the
operation must have taken place, having regard to the probable place and date
(night of October 21st- 22nd, 1946). An
Albanian expert declared that the *50 author might be certain of not
being noticed, still less identified.
In particular, if there was no look-out post at Denta Point, this would
render the secret minelaying operation not only practicable, but safer and more
easy. The Court's Experts, after going
to the spot, stated that the vessels and, under certain conditions, the
operation itself, must have been seen, especially from Denta Point, if a normal
watch was kept over territorial waters.
But was the operation
really seen?
The possibilities of
observing minelaying from the Albanian coast are shown in the Judgment. But while supervision of this sector seems
relatively easy and not beyond the means at
Albania's disposal, the evidence of the three Albanian witnesses showed how
insufficient it was. The coastal
defences had just been reorganized at the time of the incident, May 15th, but
they were manifestly inefficient.
During the critical period, immediately after and before October 22nd,
the commander of the coastal defence was absent; the harbour-master, who replaced him, judging from his evidence,
seemed not to be particularly efficient.
He was instructed only to watch;
but his posts could not even watch at all effectively. It was said that, during the night, this
imperfect watch was further reduced, and that there was no post at Denta point.
Whatever be the importance
that it is desired to give to this evidence, it does not seem to be definitely
proved that the local authorities had knowledge of the operation; and further, it would be difficult to show
how far they would have been able to inform their Government and to stop the
British warships in sufficient time.
This hypothesis was also
put forward by United Kingdom Counsel under a different form: it does not matter whether the local
authorities knew; it might be arranged
that nothing should be seen. What is
important is that the Albanian Government knew.
But if the Albanian
Government knew-and according to this conception it must be supposed that it
knew beforehand-that was not knowledge, but collusion. In short, it seems difficult to assert that
Albania knew in abstracto; if she knew, she knew in a concrete manner: when, under what conditions, and no doubt by
whom the mines had been laid. She
therefore knew, for instance, that the minelaying had been done during the
night of October 21st-22nd, with Yugoslavian material; we are now faced once again with the hypothesis
of collusion, and it has not been suggested that the operation was carried out
in collaboration with another party possessing governmental means of performing
it effectively.
*51 If the Court considers that it is not proved
that the minefield was laid by the two Yugoslav vessels, it would also seem
difficult to admit, as judicially proved, Albania's knowledge of the mines laid
by an unknown party. To declare Albania responsible for the operation or for
its result, on the basis of abstract and, so to speak, immaterial knowledge,
would be in reality to base that responsibility on a presumption derived from
the mere fact that Albania is the territorial Power and has sovereignty over
the place where the unlawful act occurred.
If the two United Kingdom
contentions (collusion and knowledge) cannot be held to be proved, the only
ground on which Albania could be considered responsible would seem to be the
fact that she did not use the due diligence required by international law, to
prevent and repress the unlawful act of October 22nd, 1946.
But two preliminary
objections would have to be examined.
(a) United Kingdom Counsel admitted that if Albania did not know
of the minefield she cannot be held responsible. Can the Court take a different view on this subject? It is not a matter of a petitum of the
Parties, beyond which the Court has no jurisdiction, but of an interpretation,
or a conception of a rule of international law. Here the Court is not limited by the views of the Parties, as was
recognized by the Permanent Court of International Justice in the case of the
Free Zones (P.C.I.J., Series A./B, No. 46, p. 138):
'From a general point of
view, it cannot lightly be admitted that the Court, whose function it is to
declare the law, can be called upon to choose between two or more constructions
determined beforehand by the Parties, none of which may correspond to the
opinion at which it may arrive. Unless
otherwise expressly provided, it must be presumed that the Court enjoys the
freedom which normally appertains to it, and that it is able, if such is its
opinion, not only to accept one or other of the two propositions, but also to
reject them both.'
If therefore a judge was
convinced that Albania must be held responsible for other reasons than those
given by the opposite Party, the opinion expressed by the United Kingdom
Counsel should not stop him.
(b) In virtue of the
Agreement of November 22nd, 1945, responsibility for Medri route 18/32 and
18/34 was, by the unanimous decision of the four Great Powers on the Medzon
Board, entrusted to Greece. It is true
that, as a United Kingdom expert remarked,
the Channel had been swept, checked and declared safe for navigation, and that
Greece's responsibility was more or less nominal. Still, Greece was responsible
for the maintenance of a certain state of things entrusted to her, and it is
well-known that she *52 immediately consented that the British Navy
should take the necessary measures in the Channel that had been handed over to
Greece.
But this aspect of the
affair concerns only Greece, on the one hand, and the United Kingdom, if not
the four Great Powers or the Medzon Board as such, on the other hand. For Albania, the Agreement of 1945 was a res
inter alios acta; and it seems certain,
from the whole of the Albanian statements, that Albania never recognized the
decision placing on Greece the responsibility for the Albanian sector of Medri
Route 18/32 and 18/34 . We must
therefore reckon that there were two distinct responsibilities: that of Greece, purely the result of a
treaty, for the Medri channel, a matter completely foreign to Albania; and that of Albania, a responsibility under
ordinary international law, as territorial Power. It is only this latter responsibility that the Court is called
upon to consider.
The Special Agreement does
not limit the Court to considering and determining whether Albania laid the
mines, or helped to lay them, or knew they had been laid in sufficient time to
warn the British ships. The Court is
asked to say whether Albania is responsible in international law. The Court's task is to consider every ground of responsibility
recognized by international law, and corresponding to the circumstances of the
case.
In international law,
every State is responsible for an unlawful act, if it has committed that act,
or has failed to take the necessary steps to prevent an unlawful act, or has
omitted to take the necessary steps to detect and punish the authors of an
unlawful act. Each of these omissions
involves a State's responsibility in international law, just like the commission
of the act itself. This general principle
is naturally capable of applications that differ according to the infinite
variety of facts accompanying the act contraryto international law; but doctrine and jurisprudence recognize it,
and it may be well to refer on to international law; but doctrine and jurisprudence recognize it, and it may be well
to refer on this subject to the opinion of the Committee of Jurists appointed
by the Council of the League of Nations in connexion with another Corfu Case, a
quarter of a century ago:
'The responsibility of a
State is only involved by the commission in its territory of a political crime
against the persons of foreigners, if the State has neglected to take all
reasonable measures for the prevention of the crime and the pursuit, arrest,
and bringing to justice of the criminal.'
The Albanian Government
asserts that: 'A government cannot be
held responsible for damage caused by mines merely because the mines were found
in its territorial waters. To involve
the responsibility of the State, it must be proved
either that the State caused the mines to be laid, or that it knowingly allowed
them to be laid.... The State cannot be
held responsible for everything that *53 happens in its territorial
waters.... It is not responsible for
watching over the safety of that navigation' (in its territorial waters).
It is true, as the Court
rightly said in speaking of knowledge, that the responsibility of a State
cannot be held to be involved solely because of the supervision it exercises
over its territority, including its territorial waters, and independently of
other circumstances. On the other hand,
it would be too easy to say that a State cannot be held responsible for any occurrence
on its territory, or that a State cannot guarantee that an act contrary to
international law will never happen on its territory. To allege such a responsibility would be absurd; international law has never been held to
impose such a burden on States. It is
equally clear that there can be no question of a breach of a rule or of a
principle of international law, save in so far as that rule or that principle
exists. But in this case, such rules
and principles do exist. Three
passages, which seem to formulate existing international law exactly, may be
quoted on this subject.
M. Max Huber, former
President of the Permanent Court of International Justice, in the Arbitral
Award in the Palmas case, 1928, said:
'Territorial sovereignty
.... involves the exclusive right to display the activities of a State. This right has as corollary a duty: the obligation to protect within the
territory the rights of other States, in particular their right to integrity and
inviolability in peace and in war, together with the rights which each State
may claim for its nationals in foreign territory. Without manifesting its territorial sovereignty in a manner
corresponding to circumstances, the State cannot fulfil this duty. Territorial
sovereignty cannot limit itself to its negative side, i.e., to excluding the
activities of other States; for it
serves to divide between nations the space upon which human activities are
employed, in order to assure them at all points the minimum of protection of
which international law is the guardian.'
M. D. Anzilotti, former
President of the Permanent Court of International Justice, said in his Course
of International Law (p. 490):
'The duty of a State
cannot consist and does not consist in the exclusion of the possibility of the
committing of acts that harm or offend foreign States by persons subject to its
authority; a State can only be bound to
take suitable measures to prevent these acts happening or, when they do happen,
to take criminal proceedings against the guilty: such is the duty of a State and only within these limits is an
unlawful international act possible.'
Lastly, in his dissenting
opinion in the Lotus case (P.C.I.J., Series A., No. 10, p. 88), Mr. J. B.
Moore, former Judge of the Permanent Court of International
Justice, said:
*54 'It is well settled that a State is bound to
use due diligence to prevent the commission within its dominions of criminal
acts against another nation or its people.'
(United States v. Arjona, 1887, 120, U.S. 479.)
Each particular case must
be considered and judged with regard for the circumstances peculiar to it. The zone of Albanian territorial waters in
question extends from the point where the Albanian-Greek frontier reaches the
Strait, up to a point somewhat to the north of Cape Kiephali, where that part
of the sea recognized as dangerous ends, and the mine-free space of the Strait
of Otranto begins. Throughout the
length of the North Corfu Channel, up to a straight line drawn from Cape
Kiephali to Cape S. Katerina, there is no free sea, the maritime frontier
between Albania and Greece following the median line of the Strait. The navigable channel, starting from the
South, goes very close to the Greek coast;
it then occupies the whole width of the Strait for a few kilometres, and
finally follows the Albanian coast very closely, as far as Cape Kiephali. That part of the navigable channel that
follows the Albanian coast for less than fifteen kilometres was the theatre of
events that gave rise to the present case.
The Judgment has
sufficiently shown what was the attitude of the Albanian Government in regard
to the right of passage of foreign warships through Albanian waters during the
period between May 15th and October 22nd, 1946, and even after.
The Judgment refers to the Albanian Government's wish to keep a jealous
watch over its territorial waters. In
fact, from May 15th onwards it is clear that the Albanian Government was
determined to refuse a free passage to foreign ships and boats through that
part of the Medri route 18/32 and 18/34 that was in Albanian waters. In that way, it rendered any supervision
that the Greek vessels might have desired to exercise in the name of the
International Mine Clearance Organization impossible. The reasons for this attitude were given by Albania in her diplomatic
notes and in her Counter-Memorial and Rejoinder, and during the arguments. They were:
the vulnerable frontier with Greece;
the territorial claims of that country;
the 'state of war' of which the Representative of Greece spoke at the
Security Council; the 'piratical
incursions' of Greek boats, eight of which were mentioned in the note of May
21st, 1946, not to mention the other 'innumerable piratical incursions' and a
number of cases in which foreign vessels entered Albanian waters on patrol,
without showing their flag and without permission; passages of British warships;
removal of property and of Albanian citizens; infiltration of hostile elements; the Bay and the Port of Saranda seem to play an important part in
the Albanian Government's anxieties.
The result was, in the opinion of that Government, the 'exceptional
circumstances in the North Corfu Channel' stressed in the
Counter-Memorial. 'The *55
question of free passage is, for Albania, necessarily connected with the
problem of the country's security.'
The Albanian note of December 21st, 1946, expressly set out
another aspect of the problem. The
Albanian Government 'desires to declare that it respects the principles of international
law concerning maritime navigation .... ships have the right of innocent
passage in straits which form an international highway of communication. But this principle of innocent passage, so
far as it can be applied to the present case, was flagrantly violated by the
ships of His Majesty, on the occasion of their passage through the northern
part of the Corfu Channel. It is
evident that there was no innocent passage when British ships were sailing
demonstratively very close to the Albanian coast.' And further on: 'If Great
Britain really wishes to apply the principle of innocent passage and to provide
for the safety of commercial shipping, she should undertake the sweeping of the
middle of the North Corfu Channel, which is the safest for shipping, in such a
way that navigation through the Channel would be more in accordance with the
principle of innocent passage mentioned in the United Kingdom note.'
It seems certain-and this
is confirmed in the Rejoinder-that from the month of May, 1946, Albania
considered this part of the swept area a critical place and wished to move the
sector towards the West. In this way,
according to Albania's view, the channel coming from the South should bend
north-westward somewhat to the south of St. George's Monastery, and not at Denta
Point, as it does at present, and would pass at an equal distance from either
coast; in this case, it would be moved about two
kilometres.
It would be natural that
this attitude of the Albanian Government should lead it to take special
measures of vigilance in the sector mentioned above during the period in
question (May-October, 1946); and the
Albanian delegate at the Security Council spoke of these. None the less, the Albanian Counter-Memorial
and Rejoinder took great pains to show that Albania was not in a position to
keep an effective watch over her coast-line and territorial waters; that she had no means of knowing what
happened there and, in particular, could learn nothing of the minelaying
operation, however close to the coast it may have been. The Albanian Government resisted the idea
that she had been watchful in the way her representative at the Security
Council stated during the discussion of the matter; and the Counter-Memorial insists upon this. The Albanian witnesses depicted the coastal
defence organization and the watch over the territorial sea as absolutely
inadequate.
What then does the
situation in the Saranda sector appear to have been? It would seem that in the organization of the watch over the
coast and the territorial waters, there was nothing *56 that
corresponded to the protests and energetic reaction against the passage of
foreign vessels through Albanian waters;
nothing that could be considered as measures of appropriate protection
against alleged danger of incursions, infiltrations, and abductions, by which
the Albanian Government endeavoured to justify its attitude towards foreign shipping.
This contradiction was characteristic of the Albanian Government's
attitude throughout the proceedings.
Her attitude shows another contradiction: it is not possible to proclaim one's rights as a territorial
Power, to exalt and exaggerate them in such a way as to refuse to allow other
States to use one's territorial waters, and at the same time to neglect the
organization of one's public order and security services intended to guarantee
to States allowed to use the navigable channel that minimum of security to
which they are entitled according to the most modest international standard.
The 'exceptional circumstances' relied on by Albania ought to have guided her
conduct and dictated to her her duties, which would not have exceeded her
capacities, however limited.
Still more, if Albania had
decided to set international action in motion in this sector of her territorial
waters, an action whose purpose might be perfectly legitimate (shifting of the
navigable channel), she ought, especially at that moment, to have made certain
that effective surveillance would enable her to avoid any additional
complications.
After the explosions of
October 22nd, and even after the notification of October 26th, Albania
evidently omitted to open an enquiry to discover the facts; nor did she propose that the Medzon Board or
the United Kingdom should take part in any investigation of the causes of the
explosion; she did not protest against
the laying of the minefield in her territorial waters, which was truly a serious violation of her
territorial sovereignty; she seemed to
remain indifferent to the grave breach of international law committed on her
territory, and to the dangers to which shipping quite close to her coast was
exposed; nothing is known of an enquiry
for the pursuit and bringing to justice of the authors of the act which also
constitutes a crime from the viewpoint of domestic law. Such an attitude on the part of the Albanian
Government has been held to be an indirect proof of Albania's knowledge of the
minelaying; it would seem more
reasonable to hold that it can and must be considered as an independent ground
for her responsibility.
For these reasons, but for
these only, Albania might be considered responsible under international law for
the explosions that occurred on October 22nd, 1946, in her territorial waters.
* * *
*57 I
would add that I cannot agree with the Court's decision on the
question of its jurisdiction to assess the
amount of compensation due to the
United Kingdom. When they signed the Special Agreement, the Parties put an end
to the proceedings instituted by the
unilateral application; this was in
accordance with the wish constantly expressed
on the Albanian side. The
Special Agreement is therefore a new
instrument and, as regards the submissions
of the Parties, to be
treated as independent of the Application, and intended
to replace it. There is no request for the Court to assess the amount of
compensation in the Special Agreement; yet such a request has become almost a
clause de style, in special agreements of this
nature, and I have not been
convinced by the interpretation adopted in
favour of jurisdiction on this
point.
(Signed) B. WINIARSKI.
*58
DISSENTING OPINION BY JUDGE BADAWI PASHA.
[Translation.]
I agree with the Court's
findings on the facts, as stated in the Judgment (pp. 12-15), and with its
rejection of the contention that Albania herself laid the mines.
The Court then considers
the argument that the mines may have been laid with the Albanian Government's
connivance, and sums it up in the following words: '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.'
To demonstrate this
collusion, the United Kingdom Government relied on the evidence of Commander
Kovacic and on a number of presumptions of fact or on circumstantial evidence.
The Court considered that,
on the one hand, the facts
related by the witness from his own knowledge were not sufficient to prove what
the United Kingdom Government claimed that they proved,
on the other hand, that
the facts (presumptions of fact), even in so far as they are established,
justify no definite conclusion.
Of these facts, the Court
expressly mentioned the possession by Yugoslavia of GY mines, which it said not
to have been proved, and the conclusion, drawn from the existence of a treaty
between Albania and Yugoslavia that those two countries participated in the
criminal act of minelaying. But when it
said that the facts justified no definite conclusion, the Court evidently meant
all the facts, without exception or distinction.
I also agree with the
Court on this conclusion, and I think that there may be a strong suspicion of
connivance, but that it is not judicially proved.
In order to make clear
what follows, I feel obliged to mention all the presumptions on which the
United Kingdom Government relies as submitted in its speeches (pp. 980 and 995, Verbatim Record,
January 17th-22nd, 1949), and to make a general remark on circumstantial
evidence.
The presumptions mentioned
on page 980 are five in number and are as follows:
*59 1. The fact that the
mines were placed actually in front of and probably in Saranda Bay itself in
the territorial waters of Albania suggests that Albania must have been at least
to some extent implicated in the laying of this minefield.
2. The conduct of Albania both after the blowing up of the ships
on October 22nd and even more after the discovery of the minefield on November
13th was not the conduct which would be expected of a Power which had learned
for the first time of the existence in her territorial waters just off a small
Albanian port of a dangerous minefield, but rather that of a State embarrassed
by a most inconvenient discovery.
3. It is possible to find motives, which Albania may have had for
causing the minefield to be laid and therefore for Yugoslavia, at that time her
closest friend and ally, assisting her, since albania did not herself possess
the resources for doing so, and no country other than Yugoslavia and Albania
had the resources and the motives for laying a minefield here before October
22nd.
4. The minefield consisted of German GY mines, marked with a
swastika; there were available stocks
of German GY mines in Yugoslavia;
Yugoslavia had marked these mines
with a swastika, and had the means of laying this minefield. The mines therefore must have come from
Yugoslavia.
5. Owing to the close friendship and relationship between the two
countries, it is inconceivable that Yugoslavia laid the mines without the
knowledge of the Albanian Government.
Two other presumptions are
given on page 995:
1. There would have been a serious risk that the minelaying would
have been seen from Limion Bay, Denta Point, and St. George's Monastery, if not
from other points also.
2. This risk was so serious and so evident that no one intending
to lay mines without Albania's consent would ever have dared run it.
* * *
The general observation is
as follows:
In a system of evidence
which is based upon free appraisal by the judge, as is the case in national
criminal legislation and in international law, circumstantial evidence means
facts which, while not supplying immediate proof of the charge, yet make the
charge problable with the assistance of reasoning. The elements of such circumstantial
evidence must be interpreted and associated in order to draw the relevant
inferences and reconstruct the data on which the hypothesis of responsibility is founded. In this process of interpretation and
association, there is a risk of committing *60 errors of appreciation,
of letting the imagination fill in the gaps in the evidence, or of reasoning in
a specious manner. This method of
evidence, which seeks or pretends to arrive at certainty, most often attains
only a high degree of probability. The
fact remains that under some legislations, circumstantial evidence must be
weighty, accurate and concordant. On
the other hand, the most reliable doctrine takes the view that 'proof by
circumstantial evidence is regarded as successfully established only when other
solutions would imply circumstances wholly astonishing, unusual and contrary to
the way of the world'. These rules must
be a constant guide in weighing evidence.
* * *
The Court then comes to
the United Kingdom argument that whoever laid the mines, they cannot have been
laid without the Albanian Government knowing of it.
The Court feels bound to
state first that '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, not 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.'
The Court then mentions
two classes of facts which corroborate one another. The first relates to Albania's attitude before and after the
catastrophe of October 22nd, 1946; the
others concern the possibility of observing minelaying from the Albanian coast.
From facts and
observations connected with these two orders of facts which the Court considers
as established, the conclusion is drawn that the minelaying which caused the
explosions of October 22nd, 1946, could not have been unknown to the Albanian
Government.
Then, after referring to
the Albanian authorities' omission, if not to send a general notification to
all States, at least to warn the warships of the danger that they were running
into, during nearly two hours, from the moment when they were reported to the
Commander of the Coastal Defences by the look-out post at St. George's
Monastery, up to the time of the explosion of the Saumarez, the Court concludes
that Albania is responsible under international law for the explosions and the
damage and loss of human life that resulted, and that the Albanian Government
must pay compensation to the United Kingdom Government.
It is these two last
findings of the Court that, to my regret, I cannot accept.
*61 The two series of facts, on which the Court
bases its finding in regard to knowledge,
were put forward with others by the United Kingdom in support of the argument
of connivance. But after considering
this argument, the Court came to the conclusion that, in spite of seven concurrent
presumptions, it was still a conjecture.
In any case, it is clear
that if connivance or collusion has not been established, the knowledge of the
minelaying that would be the consequence of this connivance, is necessarily
excluded. To maintain the contrary
would be equivalent to saying that arguments insufficient for establishing
connivance are sufficient to prove knowledge inasmuch as it is a consequence of
connivance-which I think is inadmissible.
In the British argument,
knowledge is so confused with connivance, that it is impossible to separate
them. But connivance presupposes
Yugoslavia's complicity, and the Court, with which I agree, thinks that this
complicity is not proved.
How then can the two
notions be separated? Evidently the
only way would be to reject the argument that the minelaying operation was the
result of a plot and to confine oneself to the material fact of the minelaying,
on the assumption that it was carried out by an unknown agency; it must be ascertained whether the
circumstances of the case lead to the conclusion that Albania, quite apart from
all connivance, had, or had not, knowledge of the minelaying. By reducing the problem to these terms, we
are able, of course, to dissociate knowledge from
connivance; but in that case, physical
proof so to speak of knowledge is necessary.
Reduced to that abstraction, knowledge could only be established if it
were shown that Albania, or, more exactly, the local authorities on the coast,
saw the minelaying operation. The
question of visibility from the coast then assumes an importance which it would
not have in the case of connivance; for the latter, as the United Kingdom
Counsel maintained, could take place at government level, between Belgrade and
Tirana, without the local authorities having seen anything. At the same time, the knowledge of the
minelaying must be determined in respect of time, i.e., the moment when Albania
learned of the minelaying must be determined.
Whereas, in the case of connivance, it is of little importance to decide
the moment when it took place (for connivance in itself is sufficient to
involve the responsibility of the territorial State), the precise moment when
knowledge occurred must be determined, in order to decide when the obligation
to notify the existence of the minefield first arose, or if there were not
sufficient time to make the notification, when arose the obligation to warn the
ships which were passing through the Channel of the danger into which they were
running.
The United Kingdom stated
that this visibility was established beyond dispute, both before the Security
Council and in the *62 early stages of the proceedings. The evidence of the naval officers had the
same positive ring. But Counsel for the United Kingdom no longer regards this
fact as important in his oral reply (pp.
993-995). He even admitted the
possibility that the coastal authorities had neither seen nor heard
anything. Knowledge would then have
existed at the governmental level between Tirana and Belgrade. But this would not be simple knowledge, but
knowledge as a consequence of connivance.
Even in so far as the
United Kingdom Counsel, in his speech in reply, held visibility to constitute a
presumption of connivance, he did not do so not because it constitutes a
certainty, but because it involves such a serious and evident risk for anyone
intending to lay mines, that he would never have dared to do so without
Albania's consent.
In short, the evidence of
knowledge, in the United Kingdom case, is the same as that for connivance. But for the purpose of establishing
connivance, it was considered conjectural.
Can it be thought otherwise as regards the establishing of knowledge?
It was thought however
that justification for a reply in the affirmative was to be found in the Report
of the Committee of Experts appointed by the Court, especially the second
Report drawn up after the experiments at Saranda.
The fact is that even in
these reports, which barely differ in their general conclusions on this point,
the evidence is still conjectural. In
the first place, there is only certainty in regard to visibility from Denta
Point, and then only provided a look-out post existed there, and that weather
conditions (sea, clouds, wind, etc.) were normal.
The existence of a post at Denta Point, which
is accessible only from the sea and lacks all means of communication with
Saranda, remains a matter of conjecture, as the Court has recognized. On the other hand, it remains to be proved
that the look-outs' watch was regular and effective, i.e., covering the whole
night, and that weather conditions on the exact day the minelaying took place
were normal, the month of October being mostly one in which weather conditions
are particularly abnormal.
The day on which the mines
were laid is evidently not known. The
United Kingdom argues that it was about October 22nd, i.e., October 20th or
21st; but there is no certainty on this
point, and above all, nothing to prevent the date being some other day between
May 15th and October 22nd.
On every side, then, there
are unknown and vague facts, and this is why, when the Experts state that the
operation must have been observed from a certain point under certain
conditions, they merely express a scientific probability or certainty, provided
all the required conditions are fulfilled.
To convert this scientific opinion into human truth or certainty-still
more, judicial certainty-*63 is an entirely different matter. When the indispensable data concerning the
conditions are lacking, the only answer, in my view, must be negative.
There remains the attitude
of Albania, both before and after October 22nd, 1946. This attitude is said to be shown by her diplomatic notes, her opposition or obstruction to the sweeping of
the Channel; the indifference she
showed after the minefield was discovered:
she did nothing to investigate or pursue the author of the
minelaying; she showed no surprise,
indignation or perturbation after the discovery; she blamed the United Kingdom for violating her sovereignty by
sweeping the mines, thus forgetting the more serious violation of that
sovereignty represented by the laying of the mines in her territorial waters.
In the eyes of the United
Kingdom, this attitude is one of a State embarrassed by a most inconvenient
discovery; it is not the attitude of
one that has learned of the existence of a dangerous minefield in its
territorial waters, just off a small Albanian port.
The correct attitude would
apparently have been for Albania as early as October 22nd, the date of the
accident, or, at any rate October 26th, the date of the first United Kingdom
communication, to have asked for the sweeping of the Channel or to have consented
to the sweep, even though she had not been invited to participate; and on November 13th to have opened an
enquiry into the origin of the minefield.
Albania ought, on the other hand, either to have addressed a protest to
the United Nations against the unknown agency which had violated her
sovereignty by laying minefields in her territorial waters, and to have
requested the United Nations' intervention to discover the guilty State, or
else to request a friendly State to sweep the minefield.
It is well-known that in the case of
prosecutions under municipal law, when a person is accused of having committed
an offence, the conduct of the accused or his behaviour after the crime is
often used as a presumption against him.
This behaviour sometimes manifests itself as embarrassment or
discomfort, accompanied by contradictions when he endeavours to provide an
alibi or explain certain circumstances which seem to weigh against him. At other times, this behaviour assumes the
opposite form, and the accused protests his innocence vehemently and makes
every effort to cast suspicion on others.
Both forms of behaviour might well be manifested by an innocent man
whose awkwardness or indignation caused him unconsciously to adopt such a
suspicious attitude.
The question then of the
subsequent attitude of an accused person must be handled with the greatest
care, specially when, as in the actual case, this question relates by its
nature to connivance more than to knowledge.
And still more so when States are involved. The attitude of an individual is generally personal and
subjective, and to be explained by his particular psychology; the *64 actions of a State are
generally the result of deliberation, of a compromise between different views,
and sometimes of suggestions or advice from foreign sources, or various other
considerations which cannot possibly be circumscribed or determined. It would not be right then, where State
responsibility is involved, to act on the mere analogy of what occurs in the
case of the criminal responsibility of individuals.
In regard to the diplomatic notes, the first
United Kingdom communication of October 26th was a short and peremptory notification. The Albanian note of October 31st, in
addition to inopportune protests and an unexplainable declaration of
non-responsibility in case the sweep should take place in territorial waters,
contains a statement that Albania has no objection to the undertaking, although
she seems to make the usual confusion between interior waters and territorial
waters. The United Kingdom answer to
this note, dated November 10th, gives the United Kingdom Government's decision
to sweep the Channel on November 12th;
the tone of the notification is equally peremptory. The United Kingdom
does, it is true, refer to the sweeps of October 1944 and February 1945,
undertaken without objection from Albania;
and assurance is given that no ship will sojourn in Albanian waters
(apparently this expression means interior waters). But Albania's consent is not asked, as the Central Mine Clearance
Board had recommended, nor is any invitation made to Albania to send an
observer.
Meanwhile, the discussion
in the Central Mine Clearance Board in London, of which Albania may have
received information, gives the impression of some confusion, and denotes doubt
as to the regularity of unilateral action.
It is not inconceivable
then that the apparently strange attitude of Albania may have been dictated by
suggestions or advice inspired by the international political situation of the
moment.
If, on the other hand, account is taken of
the fact that States differ in their strength, culture, history, position and a
multitude of other circumstances, and consequently do not react in the same way
to a given situation, and of the fact that the countries involved are the
United Kingdom on one side and Albania on the other, it will be readily
admitted that too much attention must not be paid to Albania's attitude.
My conclusion therefore is
that there may be strong suspicion of knowledge, just as of connivance; but that this is not sufficiently proved,
either by the evidence furnished by the United Kingdom, or by the Experts'
Report.
* * *
Since knowledge has not
been judicially proved, it is superfluous to consider whether, Albania after
learning of the minelaying, was, *65 in the hypothesis-the only one
envisaged by the United Kingdom-that mines were laid on October 20th or 21st,
in a position to notify the existence of the minefield in the Medri channel, or
at least to warn the British fleet when it was steaming towards the Channel,
and whether, by her failure to do so, Albania's responsibility was
involved. In any case, the necessary
facts to establish such a possibility have not been reported or discussed.
It remains to be seen
whether, apart from connivance or knowledge, Albania committed a fault which
may have caused the explosion, and upon which her international responsibility
for the damage suffered may eventually be founded.
The United Kingdom did not
maintain, as an alternative ground of responsibility, that such a fault
existed. Counsel for the United Kingdom
even declared formally that, unless she had knowledge, Albania was not responsible.
However, the opinion was
expressed that the terms used in the Special Agreement are general and cover
all cases of international responsibility, and that it is for the Court to
examine whether such a fault can be proved to have been committed by Albania.
Before examining this
aspect of the question, it must be stressed that international law does not
recognize objective responsibility based upon the notion of risk, adopted by
certain national legislations. Indeed,
the evolution of international law and the degree of development attained by
the notion of international co-operation do not allow us to consider that this
stage has been reached, or is about to be reached.
The failure of Albania to
carry out an international obligation must therefore be proved, and it must
also be proved that this was the cause of the explosion.
Some are of the opinion
that a general obligation exists for States to exert reasonable vigilance along their coast and
that the failure of Albania to act with due diligence was, in the absence of
knowledge on her part, the reason that the minefield remained undiscovered and
that it caused the explosion.
Such a general obligation
does not exist and cannot exist. Even
assuming that it does exist, the causal nexus between the failure to carry out
the obligation and the explosion remains to be shown.
Others, while admitting
that no general obligation to exert vigilance and no absolute criterion exist,
maintain that in any case there does exist a degree of vigilance which every
State must exercise, but that the extent of such vigilance is to be determined
according to the circumstances of each case.
In particular, it is
asserted that Albania exaggerated her rights of sovereignty as regards the
passage of ships in her territorial waters.
This excessive and almost morbid anxiety in regard to *66
sovereignty implies that, in order to maintain her sovereignty, Albania should
have exercised a stricter and more rigorous vigilance than that of countries
who recognize freedom of innocent passage.
On the other hand, it is
asserted that Albania, through her representative on the Security Council,
loudly proclaimed that she was extremely vigilant, in order to prevent
incursions and infiltrations by Greeks, precisely in the district where the
mines were laid and the explosion took place.
In the first place, to
give a decision as to a lack of vigilance or supervision
by a State in a particular district, it would be necessary to know the
availabilities of that State:
resources, organization, situation at the moment, and a number of other
considerations.
Secondly, I do not think
that her exaggeration of her rights should necessarily involve an aggravation
of Albania's duty of supervision. If
there exists a duty of absolute or relative watchfulness, international law
alone can determine its extent and limits.
But this duty cannot be increased or diminished by the conduct of the
State in question. This can only result
from Albania's possibilities and not from her declarations.
On the other hand, it may
be asked whether the United Kingdom argument does not exaggerate the importance
of the contradiction in Albania's defence on the question of vigilance-sometimes
affirming and sometimes endeavouring to deny it. Does not the vigilance to which the Albanian representative
referred seem only to be vigilance against Greek incursions and infiltrations,
by landing from small boats; this does
not necessarily coincide with the vigilance that would enable a minelaying
operation carried out at night at a certain distance from the coast to be seen
and distinguished.
Moreover, this
exaggeration of her rights and jealousy of her sovereignty seem rather to show
the wish of Albania to limit the duty of supervision by means of this
preventive barrage, rather than an obligation to redouble her supervision.
Finally, it may be asked
whether foreseeing the laying of mines should be considered as a normal obligation and if,
consequently, international law lays down, and is justified in laying down, an
obligation of watchfulness suitable for preventing or observing such
minelaying.
* * *
For these reasons, my
reply to the first point in the first question in the Special Agreement is in
the negative. This reply governs the
reply to the second point, concerning compensation, and the latter must also be
in the negative.
* * *
On the other hand, I
cannot agree with the Court's decision as to its jurisdiction to assess the
amount of compensation.
*67 In my view, the words of the Special
Agreement 'is there any duty to pay compensation' ('y a-t-il le cas de
reparations a donner'), compared with those of the submissions in the United
Kingdom Application, clearly exclude such jurisdiction. This is confirmed by the fact that the
Special Agreement amounts to a novation of the application, resulting from
negotiations and therefore implying mutual concessions on the positions
originally adopted.
Though they may be obscure, the terms of the
Special Agreement must none the less be interpreted in the light of the
declarations and of the attitudes of the Parties, as denoting absence of
jurisdiction. And if there still were
any doubt, the exceptional nature of the Court's jurisdiction, founded on the
consent of the Parties and, as a corollary, on the restrictive interpretation
of the Special Agreement, should in any case exclude such jurisdiction.
Anyhow, I do not think
that the jurisprudence of the Permanent Court of International Justice can be
invoked in the particular circumstances of the present case, nor that the
Security Council's Resolution can be interpreted without due regard for the
terms in which the matter was referred to the Council; these terms did not and could not have any
reference to a pecuniary settlement of the dispute.
Finally, the parallelism
between compensation and satisfaction is only apparent. Owing to its nature, unlike 'compensation',
'satisfaction' is not limited to a single form. The fact that the Parties have discussed before the Court the
different methods by which satisfaction may be given does not imply that it was
intended that the method of assessing the amount of the compensation should
also be submitted to the Court's examination.
(Signed) BADAWI PASHA.
*68 DISSENTING
OPINION BY JUDGE KRYLOV.
[Translation.]
1. Albania's connivance has not been proved.
The Court has rightly
rejected the allegation made by the United Kingdom that the laying of mines in
the North Corfu Channel was effected with the connivance of Albania.
I agree with the opinion
expressed in this part of the Judgment, but I feel compelled to make the
observations which follow.
In support of their
contention the British alleged in their Reply that the mines were laid near
Saranda just before October 22nd, 1946, by the Yugoslav warships Mljet and
Meljine. The British submitted to the
Court the affidavit of the witness Kovacic, a deserter from the Yugoslav armed
forces. This witness, giving evidence
before the Court, said that about October 18th, 1946, in the port of Sibenik in
Yugoslavia, he had seen German GY mines loaded on the above-mentioned ships.
By way of strengthening
Kovacic's testimony, the British filed with the Court an affidavit by a man
named Pavlov, who had deserted from a Yugoslav merchant ship. Pavlov stated in his affidavit that during
October, 1946, he had seen a warship of the Mljet type at Boka Kotorska. Hence, the British drew the conclusion that
the Mljet and Meljine had left the port of Sibenik and paid a visit to Albanian waters.
After examining Pavlov's
affidavit, the Court considered that it was unnecessary to hear his evidence at
a public sitting.
As regards Kovacic's
testimony, it was found to be full of errors.
The visit paid by the Court's Experts to Sibenik deprived it of any
value, as the Experts found that many of his categorical statements about
things he was said to have seen were materially impossible.
But there is more. Even if some part of Kovacic's deposition
was true, his evidence is still not sufficient to prove that the mines in
question were laid by the Yugoslav ships.
Kovacic alleged that he had seen the Yugoslav ships loaded with German
GY mines in the port of Sibenik. He
stated that he had heard a Yugoslav officer (whose name he was unwilling to
give) say that the mines had been laid in Albanian waters; he added that this officer had not himself
taken part in laying the mines but had merely been told about it by another
officer.
Kovacic's statement is
therefore nothing more than what the British call 'hearsay', indeed it is 'hearsay in the second degree'. Kovacic's deposition does not, and cannot,
afford any kind of proof in the present case.
*69 In the municipal law of several countries,
indirect proof (circumstantial
evidence) is sometimes considered adequate.
The well-known British author Wills has explained this point in regard
to 'common law' in his book Principles of
Circumstantial Evidence (see the combined English and Indian edition, 1936).
However, I doubt whether,
by founding oneself on indirect evidence, it is possible to conclude that a
State is responsible vis-a-vis another State.
I do not believe that international justice could be content with
indirect evidence of the sort that has been produced in the present case, which
affects the honour of a State, a subject of international law, and its position
in the community of nations.
For these reasons, I
cannot found my opinion on the deposition of Kovacic, and I feel bound to
declare that, up to the present, the criminal who laid the mines in the Corfu
Channel has not been discovered.
It is not contested that
Albania herself had no means of laying the mines. Neither can it be affirmed that Albania was an accomplice in the
minelaying operation. The assertion of
such complicity would be a departure from juridical logic. If there is no evidence to show who was
guilty of laying the mines, how can the Court find that Albania was an
accomplice in the minelaying operation?
2. Albania's cognizance of the mines has not been proved.
The Court has accepted
another of the submissions of the United Kingdom: the alternative submission that Albania was cognizant of the
minelaying.
The two following
arguments were presented in support of this theory:
(a) In the first place, the Albanian
Government's attitude before and after the explosion on October 22nd, 1946,
and, in particular, the alleged inaccuracies and contradictions in the Albanian
diplomatic correspondence. It must not
however be forgotten that in 1946 the Albanian Government was a new government
without experience in the conduct of international affairs and without the
assistance of experts in questions of international law. It is therefore inequitable to found
arguments leading to the conclusion that Albania was cognizant of the
minelaying, upon errors in the Albanian diplomatic correspondence. This consequentia non valet. Nor is there ground for asserting that
Albania sought to conceal the fact that she was cognizant of the
minelaying. Although she was not
informed as to the events on October 22nd, 1946, she did not delay in
addressing herself to the United Nations and in asking them to have these
events elucidated.
*70 (b) The British have contended, in the
second place, that the Albanian local authorities must have seen and heard the
minelaying operation. However, this
fact has certainly not been proved. The
Albanian witnesses described to the Court the organization of the Albanian
coastal guards in the Saranda district.
In the part of the Albanian coast with which we are concerned, there
were in 1946 three posts, namely at Cape Kiephali, at Saranda itself, and at the
San Giorgio Monastery. The commander of
the coast defences had also at his disposal a battery in the neighbourhood of
Saranda.
From a study of the map of this district and
of the sketch produced by the Court's Experts on February 8th, 1949, it appears
that the Albanian coastal guards were in a position to exercise the necessary
vigilance over the whole of the Strait.
But that in no way excludes the possibility of a clandestine operation
in the waters of the Strait. For the
watch kept by the coastal guards, though adequate in normal weather conditions,
could evidently not be exercised with the same efficiency in unfavourable
weather conditions, for instance in rainy weather or on dark nights, etc.
In their first report on
January 8th, 1949, the Court's Experts stated that the minelayers could have
been observed, even by night, with the aid of binoculars in the part of the
coast between Denta Point and the San Giorgio Monastery.
In regard to the possibility
of hearing the laying of the mines, the Experts stated, in the same report,
that under favourable conditions it would have been possible to hear the
minelaying operation from that part of the coast and from Limion Point. But, they added, under less favourable
conditions it would be impossible to hear the operation from all the points
that had just been mentioned.
The statement of the
Experts on this point was based on the results of the test which they carried
out under the conditions described in their report. It must be noted, in this connexion, that the Experts were on
board a vessel, not on land, i.e., in
circumstances which favoured audibility, as was quite correctly pointed out by
the Albanian Counsel at the Court's sitting on Jnuary 21st, 1949.
The second report of the
Experts, dated February 8th, 1949, after their visit to Saranda, does not
modify what they said in their first report.
The visibility test was
carried out by the Experts from the San Giorgio Monastery during a very calm
and clear night (slight breeze from the North- East) by starlight. The Experts were on the look-out, they knew
the exact moment when the boat which they were awaiting had left Saranda. They saw the boat when it was 670-800 metres
away. But the nearest mine to the
Monastery was 2,000 metres away.
The conclusion drawn by
the Experts on the question of visibility (they said that they did not carry
out an audibility test at Saranda) *71 was as follows: the two Experts considered that the
minelaying operation must have been observed from the coast if the weather
conditions had been normal (i.e., clouds 3-4/10ths, no fog or rainfall, slight
easterly breeze, visibility 20 miles), and if look-out posts were stationed at
Cape Kiephali, San Giorgio Monastery and Denta Point (in regard to the latter
post, the Court does not find that its existence was proved).
It need hardly be said
that extremely favourable weather conditions may not occur every day, and that
the statement of the Experts in regard to visibility must be understood as conditional.
It is quite evident that
the Experts' visit to the places in question has not affected the substance of
their replies regarding the possibility of seeing the minelaying
operation. We still remain in the
sphere of possibilities and probabilities.
It must be added that, in
his speech on January 17th, the United Kingdom Counsel implicitly admitted that
the mines might have been laid without the operation having been seen or heard
from the coast.
Accordingly, I do not see
any reason for asserting that Albania had cognizance of the laying of the mines
and still less for determining the exact moment at which she acquired such
cognizance.
3. The culpa of Albania has not been proved.
But is it perhaps the case
that the Albanian authorities ought to have seen or heard the minelaying
operation?
To answer that question in
the affirmative would, in my opinion, be to found Albania's responsibility on
the notion of culpa.
I employ this term,
subject to a reservation. I consider
that the terms of Roman law and of contemporary civil and criminal law may be
used in international law, but with a certain flexibility and without making
too subtle distinctions. There is no
need to transfer the distinctions which we sometimes meet in certain systems of
municipal law into the system of international law.
Is it then possible to found the
international responsibility of Albania on the notion of culpa? Can it be argued that Albania failed to
exercise the diligence required by international law to prevent the laying of
mines in the Corfu Channel? Can it be
asserted that international law involves an obligation for a coastal State to
prevent the laying of mines in its territorial waters? I do not think so. However perfectly the coastal watch of a coastal State may be
organized, the clandestine laying of mines cannot be considered impossible,
especially, one might add, in peace time when the coastal guards are not in a
state of instant readiness. But the
history of maritime war provides plenty of examples of clandestine minelaying.
*72 Here I have an observation to make. The responsibility of a State in consequence
of an international delinquency presupposes, at the very least, culpa on the
part of that State. One cannot found
the international responsibility of a State on the argument that the act of
which the State is accused took place in its territory-terrestrial, maritime,
or aerial territory. One cannot
transfer the theory of risk, which is developed in the municipal law of some
States, into the domain of international law.
In order to found the responsibility of the State recourse must be had
to the notion of culpa. I refer to the
famous English author, Oppenheim. In
his work on international law, he writes that the conception of international
delinquency presumes that the State acted 'wilfully and maliciously', or in
cases of acts of omission 'with culpable
negligence' (Vol. 1, para. 154). Mr.
Lauterpacht, the editor of the 7th edition (1948), adds that one can discern
among modern authors a definite tendency to reject the theory of absolute
responsibility and to found the responsibility of States on the notion of culpa
(p. 311).
As I have already stated,
I cannot find in the organization and functioning of the Albanian coastal
watch-having regard to the limited resources of that small country-such a lack
of diligence as might involve the responsibility of Albania. I do not find any evidence of culpable
negligence.
The confusion which
prevails in regard to the facts in this case is apparent in the circumstance
that, on the one hand, the majority declare that Albania was exercising special
vigilance whereas, on the other hand, some of the judges consider that
Albania's responsibility actually results from her lack of vigilance; the second presumption is diametrically
opposed to the first.
Though there is no
evidence to show that Albania was cognizant of the minelaying or that she was
guilty of culpa in not exercising the requisite diligence through the action of
her coastal watch, I have still to examine the question whether Albania has
incurred responsibility owing to her omission to warn the British ships of
their imminent danger on October 22nd, 1946.
I will content myself with saying that, even if Albania had known of the
existence of the minefield before October 22nd, 1946-and that has not been proved-the
Albanian coastal guard service could not have warned the British ships of the fact on that day. Having regard to the circumstances of the passage of the ships on
that day, the coastal guards had neither sufficient time nor the necessary
technical means for giving such a warning.
In view of the foregoing
and owing to the inadequacy of the evidence produced by the British, I am
unable to reach the conclusion that Albania was responsible for the explosions
which took place on October 22nd, 1946, in Albanian waters. One cannot condemn a State on the basis of
probabilities. To establish
international responsibility, one must have clear and indisputable facts. In the present case these facts are absent.
*73 4. The Court has no
jurisdiction to assess the amount of the compensation.
I cannot align myself with
the opinion of the majority to the effect that the Court has jurisdiction to
determine the amount of the compensation to be paid by Albania.
The text of the Special
Agreement signed by Albania and Great Britain on March 25th, 1948, is
clear. According to that text, the
Court may give judgment on the question of principle: Is there any duty (for Albania) to pay compensation to Great
Britain? It does not follow at all that
the Court has jurisdiction to fix the amount of the compensation. In my opinion, that is perfectly clear, not
only from the wording of the Special Agreement, but especially from the
circumstances in which that Special Agreement was concluded.
In her Memorial, Great Britain asked the
Court to award her the sum of pounds
sterling875,000 sterling by way of damages.
The signatories of the Special Agreement of March 25th, 1948, and in
particular the United Kingdom Agent, cannot have failed to have had that demand
in mind. I exclude the possibility of a
reservatio mentalis on the part of the latter agent; and so the Special Agreement did not maintain that claim.
At the same time, the
Special Agreement put a new question to the Court concerning the lawfulness of
the acts of the British Navy in Albanian waters. The Special Agreement is a
complete restatement of the case submitted to the Court and does not embrace
the question of the amount of money that might have to be paid.
It is true that during the
oral proceedings in January 1949 the United Kingdom reaffirmed its claim for
the payment of the sum previously mentioned, but this interpretation of the
Special Agreement by the British Counsel is in my view contrary both to the
letter and the spirit of the Special Agreement of March 25th, 1948, and it was
disputed by the Albanian Counsel.
I consider that the Court
should interpret the Special Agreement of March 25th, 1948, restrictively,
bearing in mind that its jurisdiction is based solely on the consent of the
Parties.
The vague references which
may be found in the records and the citation of various documents are not
adequate to found the jurisdiction of the Court which, in this respect, has exceeded the
limits laid down by the Special Agreement.
5. The passage of the British ships on October 22nd, 1946.
The passage of the British
squadron through the territorial waters of Albania was made on October 22nd,
1946. These waters extend to the median
line of the North Corfu Strait. Was it
an innocent passage, having regard to (a) its object and (b) the methods by
which it was effected?
*74 The question of innocent passage by warships
belonging to one State through the territorial waters of another State has not
been regulated by convention. The Hague
Conference of 1930 for the Codification of International Law failed in its
efforts to regulate the regime of territorial waters. The practice of States in this matter is far from uniform, and it
is impossible to say that an international custom exists in regard to it. We only dispose of scattered
sources-suggestions by international associations, doctrines of learned
authorities, etc.
In my opinion, we should
adopt the standpoint of the French writer, M. Gidel, who, in his work Le Droit
international public de la Mer, expresses himself as follows (Vol. 3, p.
284): 'The passage of foreign warships
through territorial waters is not a right but a tolerance.' The reason is that a warship's character is
different from that of a merchant ship.
The celebrated American jurist, Mr. Elihu Root, in his speech in the
North Atlantic Fisheries case, judiciously
declared that the passage of warships through territorial waters should not be
effected without the consent of the coastal State. Warships constitute a menace-'they threaten', that is not the
case with merchant ships: 'merchant
ships may pass and repass because they do not threaten' (see Hackworth, Digest
of International Law, Vol. I, p. 646).
It will be sufficient to cite in addition the statement on this point in
Harvard Law School Research in International Law (1929, p. 295): 'There is therefore no reason for freedom of
innocent passage of vessels of war.
Furthermore, the passage of vessels of war near the shores of foreign
States and the presence without prior notice of vessels of war in marginal seas
might give rise to misunderstanding even when they are in transit.'
Accordingly, the right to
regulate the passage of warships through its territorial waters appertains to
the coastal State.
Does this right appertain
to the coastal State if the territorial waters form part of an international
strait? No uniform reply can be given
to that question.
Contrary to the opinion of
the majority of the judges, I consider that there is no such thing as a common
regulation of the legal regime of straits.
Every strait is regulated individually.
That applies to the Bosphorus and the Dardanelles, to the Sound and the
Belts, to the Strait of Magellan, etc.
The legal regime of all those straits is defined by the respective
international conventions. The regime of the Corfu Strait has not been
juridically regulated. Owing to its
insignificance, the regime of that Strait has not been found worthy of special
attention. Suffice it to say, for
example, that the Greek writer Jean Spiropoulos, in his manual Droit
international public (1933), makes no mention at all of the Corfu Strait. If the regime of the strait is not defined
by a multilateral convention, it appertains to the coastal State or States to
regulate it. When political conditions
were normal, *75 it would have been found possible to regulate the
regime of the North Corfu Strait by an agreement between Albania and
Greece. In 1946, when Albania was
considered by Greece as being in a state of war with the latter, such an
agreement was impossible. Therefore,
Albania had the right to regulate the passage of warships through her
territorial waters provided that she conformed to the rules of international
law.
Faced with the decision of
Albania to make the passage of warships conditional on a prior authorization,
the United Kingdom, instead of utilizing one of the peaceful methods enumerated
in Article 33 of the United Nations Charter in order to settle the dispute
which had arisen between her and Albania, ordered four warships to make a
passage through the Strait.
In accordance with the instructions
received from the Admiralty, the British squadron carried out the passage
through the Corfu Strait as a special mission, the exact method being specified
in an order issued by the admiral commanding the
squadron.
I note that this order,
entitled XCU (Exercise Corfu), was not produced to the Court by the United
Kingdom Government notwithstanding the decision taken by the Court on December
14th, 1948. I am therefore unable to
pass judgment on its contents, and I will confine myself to examining the
methods by which the passage was made on October 22nd, 1946, and which may
reveal the purport and objects of that order.
I will content myself with
drawing attention to two facts which show how the order XCU was carried out.
(a) It is shown by the
records that the British ships were observing the Albanian coast and making
notes on the Albanian defences and batteries.
That is proved by the chart attached to the British Memorial (Annex 21)
and by Admiral Kinahan's report of October 23rd, 1946, paragraph 3 of which
shows that the reconnaissance of the Albanian coast defences was being carried
out some time before the explosions which damaged the British ships.
(b) The passage of four
British ships revealed the intention on the part of Great Britain to intimidate
the Albanian authorities and to make a display of British naval power.
Consequently, it may be
affirmed that on October 22nd, 1946, the British ships misused the right of
passage. Therefore, the passage of
these ships on October 22nd, 1946, ceased to possess the character of an
innocent passage and, for that reason, the
sovereignty of Albania in her territorial waters was violated.
6. Operation Retail on November 12th and 13th, 1946.
I agree with the
conclusion at which the Court has unanimously arrived on this point, but I wish
to present some supplementary observations.
An analysis of the acts of
the British Navy on November 12th-13th, 1946, makes it clear that this was a
minesweeping *76 operation organized by the navy of one State in the
territorial waters of another State:
Albania.
Under cover of the
necessity of sweeping the mines, the acts undertaken by the British Navy were
nothing else but the intervention of a foreign Power in the affairs of another
State-a weak State which possesses no means vim vi repellere.
It may be said that
international law is unanimous in condemning the 'right' of intervention in any
forms in which this alleged right may be exercised.
In the present case, a
British squadron of twenty-three warships appeared on November 12th, 1946, off
the Albanian coast. It proceeded to
sweep an area where its larger covering ships (cruisers and aircraft carrier),
some eight ships, were stationed for two days, on November 12th and 13th, 1946,
full in view of the Albanian coast. On
November 13th, under the special protection of aircraft, a minesweeping
operation was undertaken near Saranda.
This sweep was effected by
a decision of Great Britain without Albania's consent, without an observer of
the latter country being allowed to participate and even under a false pretext (see the
British notes of October 26th, 1946, and November 10th, 1946, in which the
British Government stated incorrectly that the mineclearance had been approved
by the Central Mine Clearance Board- see British Memorial, pp. 43 to 45).
The Albanian note of
November 11th, 1946, had proposed the constitution of a mixed commission to
delimit the area which was to be swept.
But no answer was given to this offer.
In defending the
unilateral action of the United Kingdom, its Counsel invoked the alleged right
of self-help. He argued that Great
Britain merely wished to collect evidence that mines had been laid; in other words, it was a judicial police
operation. He tried to convince the
Court that this was a unique and unprecedented case and that Great Britain had
no choice but to exercise the right of self-protection, confined to what was
strictly necessary.
The Court was unable to
accept this argument. The claim to
exercise judicial action in the territory of another State is inadmissible
because it violates the sovereignty of the State in question. Memory recalls the Austro-Hungarian claim in
1914, before the outbreak of the first World War, to participate in a criminal
prosecution which had been opened in Serbian territory. As is known, public opinion throughout the
world declared its opposition to this exorbitant claim which violated the
sovereignty of another State.
It should be observed that
the British argument on this point, i.e., their defence of the alleged right of
self-help-which is nothing else but intervention-relies on assertions which
have already been outstripped by the further development of international law,
especially since the ratification of the Charter of the United Nations.
*77 Since 1945, i.e., after the coming into
force of the Charter, the so- called right of self-help, also known as the law
of necessity (Notrecht), which used to be upheld by a number of German authors,
can no longer be invoked. It must be
regarded as obsolete. The employment of
force in this way, or of the threat of force, is forbidden by the Charter
(para. 4 of Art. 2).
In forming juridical
opinion of the character of the acts of the British Navy on November 12th and
13th, 1946, it must be noted that Great Britain assembled considerable naval
forces, as has been stated above, in order to make a naval demonstration off
the Albanian coast. A naval
demonstration may be defined as a direct threat aimed at another State (see
Frisch, Kriegerische Demonstration zur See.
Strupp, Worterbuch des Volkerrechts und der Diplomatie, Vol. I, pp.
226-227).
The British forces seemed
so overwhelming that, according to evidence given to the Court, the inhabitants
of Saranda were preparing to leave the town and take refuge in the
mountains. Seeing the British ships
stationed and operating in waters adjacent to Albanian territory, the
inhabitants of Saranda were seized with panic and expected an invasion. Public peace was thus disturbed on the Albanian shore.
But according to the
United Nations Charter (Art. 42) demonstrations and other operations carried
out by the air, sea or land forces of Members of the United Nations may only be
undertaken in pursuance of a decision by the Security Council. The Charter, therefore, prohibits unilateral
military action by its Members.
It follows that the action
taken by the British Navy in Albanian waters on October 22nd, 1946, and on
November 12th and 13th, 1946, involved the international liability of Great
Britain and must be described as a violation, in international law, of
Albania's sovereignty.
The statement of that fact
constitutes the satisfaction which is justly due to Albania.
(Signed) S. KRYLOV.
*78
DISSENTING OPINION BY JUDGE AZEVEDO.
[Translation.]
1.-The purpose of the
following observations is to explain the reasons which compel me, to my regret,
to differ from certain of the grounds and certain of the findings of the
Judgment.
Taking as a starting-point for considering
the facts of this case the month of October 1944, it will be remembered that at
that time Italy had been beaten and the Allies' advance in the Mediterranean
gave them free play to follow after the Germans in the Mediterranean.
At this time the situation
in the Balkans was very chaotic; there
were intestinal disputes of great complexity and there was no unity among the
different groups of resistance to the Axis, which were also fighting one
another.
In Albania, one of these groups
assured the direction of public affairs and contact with the Allies, mainly the
British and Americans, who had military missions attached to this Provisional
Government. But after the general
elections in December 1945, relations between the Government, which the popular
vote had confirmed, and the military missions were not always harmonious.
However, steps were taken with a view to the establishment of diplomatic
relations between the United Kingdom and Albania in May 1946, in spite of the
postponement of Albania's admission to the United Nations as the result of the
vote of certain countries, among them Great Britain.
2.-At the end of 1944, one
of the chief problems of the Allies was the clearance of maritime routes in
order to facilitate the advance of the naval forces; in the Adriatic this was mainly, if not entirely, the task of the
British. The minesweeping forces were
moving southward, and at the beginning of
October they proceeded to clear the Corfu Channel while the Germans were making
their last efforts by laying a minefield at Salonika as late as October 23rd.
The end of hostilities led
to a need for intensifying work on opening up sea communications, and certain
international bodies were created for that purpose.
Thus, in May 1945, the
Central International Mine Clearance Board and the Mediterranean Mine Clearance
Board (Medzon) were formed, and this was followed in July by the creation of
the International Routeing and Reporting Authority.
*79 The work of these various bodies led to the
publication, beginning in October 1945, of two series of navigational
documents, the Medri pamphlets and charts.
It should on the other
hand be remembered that Albania knew of the existence of the Medri channel, No.
18/32 , at any rate as shown in the charts and pamphlets supplied up to a
certain date by the general who was head of the British military mission at
Tirana.
It has been alleged that
in October 1944 the United Kingdom had merely reswept a former German
channel. However, it was only in May
1945 that the German charts were available, and these only gave the direction
and not the boundaries of the channel.
It must be said that subsequent verification has not shown that there
was much difference between the two channels, though it must be admitted that
the new channel keeps somewhat closer to the coast.
It is also noteworthy that the green line of
the channel on almost each successive edition of the Medri charts was gradually
moved, though the pamphlets retain the co-ordinates mentioned in the
radiotelegram of November 7th, 1944, which is said to have been intercepted by
chance. It is not clear why these changes
were made, for there is no allusion to minesweepings after February 1945. It is further to be regretted that more
exact details of the minesweeping had not been kept for the Court to see,
though it is understandable that the urgency of the work led to its being
regarded as more important than the preparation of reports.
It must be added that
during the minesweeping operation on November 13th an error was noted in the
position of the Albanian coastline South of Cape Kiephali on the Admiralty
chart No. 206; this error was at once
marked on the map.
3.-More than a year after
the minecleareance operations, two British cruisers, coming from the North,
passed through the Channel; they were
fired on by a coastal battery, but they were not hit by the projectiles and
continued on their way towards Corfu.
A controversy arose on
this subject; it remained at first in
the legal sphere. It was interrupted
between June 21st and the third British note on August 2nd. However, relations between the two countries
did not improve. Albania considered even the United Kingdom to be an ally, or
at least a faithful friend of a
neighbouring nation which had announced to the United Nations its intention to
claim a part of Albanian territory.
But, in reply to the
United Kingdom's assertion of a right of innocent passage, Albania had said
that she was opposed to the passage of any vessel through the Corfu Channel
without previous request and without her authorization. Furthermore, on May 17th, 1946, Albania
informed the United Kingdom and certain other *80 countries at the same
time that its Government prohibited the passage under the conditions mentioned
above.
Briefly, the United
Kingdom was not content with a platonic attitude and with mere
reservations. Although the commander of
the naval forces had not replied to the shots on May 15th as he might have done
in legitimate defence, the United Kingdom took energetic action as soon as the
strange prohibition was made known.
It should be noted that
Greece, which was the country most concerned in free navigation in a channel
which led chiefly to its ports and to waters over which it had rights, had
preferred the course of keeping away from the passage so as to avoid increasing
the frontier incidents.
Great Britain had given a
similar order, but it was cancelled, at first, on August 21st, and was then
limited so as to allow of a passage if it should be found necessary. Another change resulted from the Admiralty
telegrams of September 15th and 22nd;
though indirectly, they invited the Commander of the Mediterranean Fleet to try to make a passage
through the North Corfu Channel, even if it was not necessary.
The last words in the previous
British note of August 2nd was a threat to return fire. How could a test be made of a change of
attitude of the party to whom this challenge was directed? In order to ascertain whether the Albanian
authorities had acquired a certain standard of diplomatic conduct, they were to
be warned of the experiment, at any rate so that they might understand the
steps taken expressly to give the appearance of a friendly passage, such as the
direction in which guns were to be trained, etc.
4.-The autumn cruise of
the Mediterranean Fleet was ending. As
early as August 15th, the commander had arranged the programme which was to
terminate with an assembly of all the units at Argostoli on October 23rd; this programme had therefore to be changed,
in order that four of the ships might pass through the Channel.
The result of this
experiment was most lamentable; the
explosion of two mines led to the practical destruction of one destroyer, which
had to be abandoned, and serious damage to another, besides killing 44 men and
wounding 42.
In regard to the
circumstances of this passage, a certain number of divergencies have been
gradually smoothed out, after explanations and verifications, and still more
after the correction of a number of errors some of which were rather
serious. Even the logs, which are
universally considered trustworthy,
contained some serious inaccuracies.
In regard to the spot
where the accidents occurred, there were errors which led to discussion, and in
regard to the time of the second explosion, there were various data which
required additional information before they could be reconciled. One last circumstance *81 must be
noted: the order to change course in
front of Denta Point was given a little late, and this led to a departure from
the axis of the Channel and a closer approach to the coast.
The combination of all
these errors, and of other circumstances already referred to, would have left a
residuum of serious doubts if one fact had not been incontestable and if the
details could have obscured the main picture.
We are therefore compelled to admit that the two explosions occurred
within the limits of the Channel. But
we cannot be sure that at that time Albania had all the information necessary
for reaching the same conclusion.
5.-Once certainty was
arrived at in regard to the damage-which is the first element to be
considered-it is necessary to ascertain the fact that produced the damage by
determining the indispensable link of causation between antecedent and
consequence, so that the two may not merely be connected in time by a relation
of simple contiguity.
What caused the damage in
this case? It is to be observed, first,
that the Germans had already laid some mines;
on the other hand, the view of the Court's Experts must be accepted that
a sweep of moored mines, when properly executed,
gives an assurance that the mines were cleared 100%. For technical reasons the hypothesis that the mines were laid by
submarines or by aeroplanes, or that they were magnetic mines, had to be
abandoned. One must also reject the
hypothesis that they were floating mines, owing to the striking coincidence of
the two explosions occurring practically in the same circumstances of time and
place, without these facts being attenuated by the circumstance that other
vessels passed through without injury.
Lastly, eloquent evidence
was provided by the nature of the damage, showing considerable violence, as is
definitely proved by the documents filed in the case, although we do not know
what explosive charge was used in the Italian mines which were employed in the
enemy minefields.
We have thus eliminated
all other possibilities than the explanation that a minefield was laid after
the end of enemy action: we thus
succeed, by a process of elimination, in isolating a single antecedent, which
is thus transformed into a veritable cause, according to the classical rules of
JOHN STUART MILL.
This solution is
impressive in itself. It was decisively
supported by the discovery of a new minefield on November 13th, 1946.
However, while admitting,
at the last, that a new minefield was laid, Albania only changed her
position; for she still denies that it
was these mines that caused the damage.
She demands, in fact, that it shall be proved that the minefield was laid before October 22nd, and
she puts forward the hypothesis that they were *82 only laid after the
events in order to make difficulties for the coastal State.
But, if the laying of a
minefield in time of peace is almost inconceivable, the Albanian suggestion
would involve the successive laying of two minefields at short intervals, and
that would be even more extraordinary.
6.-When one has to
appreciate the unlawful character of the act causing the damage, one is obliged
to take into account certain considerations by which a judge must be guided in
this connexion and also in the problem relating to imputability, which is so
closely linked to it. This preliminary
statement seems to be called for when one is taking a different road to arrive
at the same goal; because in such a
case a previous exposition of a definitely doctrinal character becomes
unavoidable.
For instance, the Parties
strongly emphasized the necessity of demonstrating, in this case, the existence
of a breach of an international obligation.
That notion is of such importance that many writers have accorded it the
foremost place in a theory of responsibility, now in such high favour.
7.-But this formula,
though so greatly lauded by its adherents, does not help to eliminate
difficulties which are also encountered in municipal law.
Though operating solely on
a limited plane, such as the infraction of a rule of positive law, this
doctrine seeks to claim advantages which could only be gained by the application of another
principle. Thus, the divergencies as to
the necessity of specific clauses concerning preexisting obligations have
nothing in common with the parallel action of another principle which makes, or
does not make, imputability conditional on the moral element of culpability.
It follows that the
doctrine of a breach of international obligations can only claim to be regarded
as objective by a confusion of terms, except in so far as it reinforces its
basic principle by another principle, involving the exclusion of the notion of
culpa.
But the fact that the
doctrine cannot derive support from the latter element is proved by the fact
that its champions are themselves divided into three different groups: one which does not discard the requirement
of culpa, one which sees no need for that requirement; and a third which maintains both
possibilities, according as international law, in a given case, does or does
not require recourse to the notion of culpa (omission, indirect responsibility,
etc.).
The weak point is found in
the very core of this theory, i.e., in the foremost place accorded to the
nature of the violation. The result is
a restriction of the practical application of responsibility.
*83 In endeavouring to judge of the conduct of
States, this conception leads to an alternative, towards two opposing
tendencies: either definite obligations
must be laid down, or on the contrary a general line of conduct without precise marks must be admitted. And the choice between these two forces of
expansion or contraction may be fatal to the doctrine itself.
If, for instance, it was
required that the violation of an obligation shall be previously established in
each case, the drawing up of a complete catalogue of cases of responsibility
becomes inevitable. But this would
correspond to a less advanced phase, the limitative enumeration of the sources of
delicts and quasi-delicts, in accordance with the general tradition of Roman
law. We should then be approaching the
criminal law and end by accepting the principle nullum crimen sine lege.
But if, on the other hand,
we prefer to abandon this rigidity, we may expose ourselves to another
danger. Setting aside conventions and
custom, and accepting the influence of general principles of law, we lose all
control and are unable to stop halfway.
We are compelled to go as far as the fundamental trilogy and to
establish civil re ponsibility by the simple violation of neminem laedere, or
else to draw, arbitrarily, precise corollaries from vague principles.
At this point, the new
doctrine will have lost all purpose and will collapse.
8.-This criticism, which
indeed is well known (see ROBERTO AGO, Recueil des Cours, Vol. 68, p. 483,
GEORGES SCELLE, Cours de Droit international, publ. Paris, 1948, p. 912), may
continue on the same footing if we examine in detail the pre-existence of a
duty, disregard of which must involve responsibility, pecuniary or moral.
We observe first that the
determination of these positive international obligations as sources of
responsibility leads to difficulties which are not easy to overcome, especially
when a judge is faced with a new case, not clearly foreseen.
If there is no convention
or custom directly governing the question, must the judge pronounce a non
liquet and thus hamper all progress in the theory of responsibility? Custom is made up of recognized precedents,
and we must not prevent the formation of new precedents; an international lawsuit may give
opportunities for such formation and for putting an end to uncertainties that
previously prevailed.
9.-The existence of a
conventional rule is not enough to dispose of the difficulties, and the present
case is an eloquent *84 example of the need for departure from a very
rigid rule. The facts considered are
not in accord with any known precedents;
there is no custom that can be relied on, nor can the difficulty be
overcome by reference to a convention.
It is interesting to note
that the United Kingdom did not merely invoke Hague Convention No. VIII of
1907, but recognized that it was also necessary to rely on general principles
of international law and even on simple reasons of humanity.
For, indeed, the
convention in question is not really applicable in this case, unless by an interpretation which would be
carrying the method of analogy to an extreme limit. It had to be pointed out that it is declaratory, which would be
equivalent to regarding it as superfluous.
According to its text, the convention relates only to war and not to
peace time; and it only deals with the
direct laying of mines and not with their laying by a third party. Albania was not a signatory and never
acceded to the convention.
Nevertheless, Albania
admits strictly that it is forbidden to lay mines in peace time, so that it is
sufficient to argue a fortiori.
But in spite of repeated
assertions to this effect, it was at one moment put forward in Court that it
was for the author of the minelaying, and not for a third party who learnt of
it, to give the notification, so that if the latter party failed to do so he
would not be disregarding an international obligation.
It is true on the other
hand that an agreement between the parties on the facts is valid, even though
an international court, having more freedom in regard to evidence than a
municipal judge, might make reservations;
such an agreement would be quite inadmissible in regard to the law to be
applied.
Thus, even if an accession
by Albania to the convention in question might certainly be considered as
reasonable, this accession could not retroactively render unlawful an act
already accomplished.
10.-The limitation of responsibility
to the contractual sphere is also in line with the claim which has already been
mentioned: that this doctrine abolishes
the subjective element in
responsibility; i.e., the non-execution
of a contractual obligation connotes, by itself, the existence of culpa, so
that a debtor can only clear himself if he can prove the existence of an
external cause; yet one may still
consider that culpa itself is absent.
But that is not the right
road. We must re-establish in
international law the two sources which are essentially one: contractual culpa and delictual culpa, even
if we continue to distinguish, in both sectors, between cases of conduct
definitely indicated in *85 advance and cases depending simply on a
general rule of prudence (HENRI and LEON MAZEAUD, Traite de la Resp. civile,
Paris, 1948).
Attempts to reconcile
these two criteria-that of precise rules and that of a general standard of
conduct-will never succeed, as became evident at the Hague Conference in 1930,
in spite of the interminable discussions which took place in the Third
Committee.
Codes of obligations make
no attempt to enumerate prejudicial acts;
but it must be recognized that men are subject to a standard of conduct
and are responsible if it is disregarded.
In the same way, States must respect a certain level of conduct among
themselves, determined by the conditions of international life at any
particular period of history.
Even in the absence of any
convention one could not admit that such an act as secret minelaying in time of
peace does not involve the responsibility of the State concerned, for it is an abnormal and
extraordinary act which would even constitute a crime when a world criminal
jurisdiction has been organized. The
community could not continue to exist if an act so definitely characteristic of
criminality-whatever may be its conventional definition-were to go unpunished.
It would constitute a
formal infringement resulting from the actual danger, and any country could
demand the condemnation of the author of such an act, dangerous to shipping,
even if it could not claim reparation for damage actually sustained. At the very least, in order to defend the
interests virtually endangered, the judgment should order the clearance of the
mines at the cost of the author, just as in domestic law a judge would order
the demolition of a wall built in the wrong place.
11.-Again, one must take
account of the subjective element, even if one is disposed to push
international responsibility to the point of risk by giving it a truly
objective character.
It is indisputable that a
condemnation founded on moral elements of culpability, coexisting with the
breach of an obligation, would be more in accordance with the promptings of
man's conscience, and the conscience of humanity.
The notion of culpa is
always changing and undergoing a slow process of evolution; moving away from the classical elements of
imprudence and negligence, it tends to draw nearer to the system of objective
responsibility; and this has led certain
present-day authors to deny that culpa is definitely separate, in regard to a
theory based solely on risk. By
departing from the notions of *86 choice and of vigilance, we arrive, in
practice, at a fusion of the solutions suggested by contractual culpa and
delictual culpa.
And so, without prejudice
to the maintenance of the traditional import of the word culpa and to avoid the
difficulty of proving a subjective element, an endeavour has been made to
establish presumptions that would simply shift the burden of proof as in the
theory of bailment in which a mere negative attitude- a simple proof of absence
of culpa on the part of a bailee-is not sufficient. The victim has only to
prove damage and the chain of causation;
and that is enough to involve responsibility, unless the defendant can
prove culpa in a third party, or in the victim, or force majeure; only these can relieve him from
responsibility.
This tendency has already
invaded administrative law (notion of faute de service) and a fortiori must be
accepted in international law, in which objective responsibility is much more
readily admitted than in private law.
Accordingly, on the
subject of territorial seas, even if a State is not bound to remove natural
difficulties due to the accidents of geography, it is contended that it must
have regard to what relates to human intervention, e.g., the maintenance of
lighthouses, save in the exceptional cases mentioned above. On the other hand,
it is for the defendant to show that the burden of proof has been shifted.
In spite of some doctrinal
remarks in the opposite sense, the Italian Court of Cassation, reversing the
decision of the Savona Court in its judgment of December 19th, 1906, held the
State to be responsible for the imperfect functioning of the lights which it provides
for shipping (Rev. int. de Dr. marit., 1907, pp. 466 and 711).
12.-As regards
imputability, in the present case one must begin by considering the hypothesis
of a deliberate action, inspired by malicious intent, though it must be
emphasized at the outset that, in spite of the gravity of the offence, it is
not the penal law which is being applied.
It often happens in
municipal law that a judge in a civil case has to find facts which are also of
a criminal nature, without imposing penalties;
this accounts for the anxiety of legislators to reconcile the action of
parallel tribunals, the criminal factor always prevailing over the civil
factor. In the sphere of international
law, there is no danger of encountering this contradiction.
Since the mines could not
have been spontaneously produced, they must have been laid either by the
Parties, alone or with the *87 help of others, or by other States acting
on their own initiative and for purposes favourable or unfavourable to the
Parties.
The United Kingdom accused
Albania of having laid the mines and has never really
abandoned this hypothesis. On the other
hand, Albania at times made vague insinuations against the United Kingdom, but
at the last moment abandoned any accusation of that nature.
The suggestion that the
United Kingdom laid the mines, put forward without much conviction, was devoid
of substance.
Next we have the
suggestion, often made, that the mines were laid by a third State, an enemy of
Albania which was trying to involve her in difficulties with a great Power.
This insinuation cannot
find any explanation that satisfies the most modest requirements of common
sense. Even if it be taken in a
concrete way as referring to a country which was an enemy or adversary of
Albania, the insinuation is no more comprehensible. There is not a single indication of the sort; not the slightest rumour. But on the contrary, counter-indications
such as the British supervision of the squadron of that country and the moral
impossibility that that country should desire to cause serious damage to an
ally or friend.
The imputation that the
mines were laid by Albania would also, in principle, be hard to accept,
although despair, or the desire for vengeance on the part of inexperienced
persons, groups or peoples may lead them to forget their own interests and to
adopt desperate methods, if such methods seem to them the only way of securing
respect for measures which they regard themselves as free to adopt.
Daily struggles against neighbours would certainly tend to increase the
desire to take such action.
An act that endangered the
shipping of the whole world, merchant and war vessels, friends or enemies, and
that might affect nationals, would almost resemble self-mutilation. Perhaps, in view of the facts, the danger to
coastal shipping or fishing boats would not be great, for only ships of 12 feet
draught could hit the mines; but all
the possibilities of every-day life can never be imagined.
13.-We must however reject
the theory that Albania laid the mines herself because she not only lacked the
means but also th mines. In the
Security Council it was not believed that she could have done so; the majority of the Members thought that the
mines *88 had been laid with Albania's knowledge.
But the impossibility of
laying the mines would not exclude all consideration of culpable intention, for
the act may have been carried out by another country bound by ties of
friendship to the Parties and acting as mandatory.
True, it is very difficult
to accept the theory that a mandator can be responsible unless the mandatory is
identified, especially when the number of possible authors of the act is
extremely limited.
Yet, such a suggestion was
made as against Albania and during the proceedings was transformed into an
accusation: first, in the Reply, in the
form of a question, then before the plenary Court with detailed particulars.
14.-Thus, it was alleged that the mines had
been laid by a third State, not on its own initiative but in the interest of
Albania.
Towards the end of the
hearings, the United Kingdom considered a number of possibilities, but none of
them would justify us in thinking that in doing so it admitted, even
conditionally, that Albania was exculpated by the fact that her neighbours had
laid the mines without her request, her connivance, or even her knowledge.
The situation of a country
regarded as the protege of another, and in its debt, owing to treaties and
agreements, would not suffice to interchange the parts played by them if it
were suggested that the mines were laid to serve the interest of the nation
which, although the weaker State, would in this operation continue to be the
mandator and never the mandatory.
A radical change in the
presentation of the facts was brought about by the evidence of a former naval
officer who emigrated in October 1947.
He alleged that the mines had been loaded in a certain port on two small
minesweeping vessels which were sent to Corfu a few days before October 22nd,
1946. This story, considered in
abstracto, would be very relevant to the facts calling for explanation; for GY mines are not a form of merchandise
that could be ordinarily transported in the neighbourhood of Corfu.
However, the substance of
the documents in which this accusation was made was brought to the knowledge of
the third State, and the latter was content to publish
a communique the text of which was filed with the Court by Albania. This
downright refusal was not accepted by the United Kingdom, which proceeded to
furnish new arguments and evidence in support of the witness's statement; this
made Albania periodically produce a number of other documents.
*89 Of course, a State which abstains from
intervening in a case and thus escapes the possibility of a decision adverse to
itself could not thereby claim to be declared innocent; nor even to enjoy a privileged position
vis-a-vis the parties investing it with a right of veto in regard to the
examination of documents which were in truth documents of the accused party.
True, the assertions made
by States parties to the case or even by third States must be accepted whether
supported by documents or not, provided that there is no proof to the contrary,
for such assertions do not enjoy absolute immunity; if they possessed an intangible character, international justice
could not advance.
For instance, it must be
considered regrettable that the existence of certain vessels was denied, though
afterwards it was acknowledged that they existed, though with different names.
The introduction of such
subtle denials is calculated to weaken the strongest arguments. A complete denial is always preferable to a
series of statements giving partial explanations with a risk of
contradictions; as for instance, the
evidence that certain ships were not in a condition to navigate at a particular date.
Moreover, the searching
criticism to which the ex-officer's statement was subjected brought out, on the
one hand, the improbability of almost all its elements: the contradiction between the details
related and the ordinary data omitted;
and on the other hand the general explanation of the operation,
coinciding with the possibilities of its accomplishment.
We are bound in any case
to recognize the inadequacy of a proof based almost entirely on one witness
whose statements were inadequate on many main points.
Other grounds for the
rejection of this version were for example the insufficiency of evidence as to
the possession of GY mines by the Power supposed to have been the
mandatory. The statement made regarding
the swastika mark on the mines is also not of a decisive character, because the
Germans themselves may have made use of this mark, which was not as a fact
mentioned in the reports of the British authorities and was only revealed by a
photograph, without convincing evidence in its support.
Finally, it must be
observed that a State with great experience would not likely risk provoking a
casus belli with a great Power; even if
it felt resentment against the latter, it would have chosen more acceptable
methods than that of allowing itself to be used for such a serious purpose, so
easily discovered, for hundreds of persons would have been in the secret; and advantage there would have been none, as
is shown from the allusions of the Parties
to the old saying cui prodest.
*90 15.-And even if the participation of a third
country was evident, the condemnation of the respondent could still not be
founded on that fact.
A municipal court has
jurisdiction over every citizen and can declare that a certain act has been
committed by a third party, a stranger to the proceedings, though it is bound
to act with caution and must always reserve the economic and moral rights of
such a third party, as the decision will not affect him except in the case of
complicity.
But an international judge
cannot act in the same way; for his
jurisdiction is based on the will of the parties, either directly or indirectly,
in virtue of Article 36 of the Court's Statute; this renders a mere allusion to the acts of a third State
inadmissible. A country which is not a
party to the case and has not been summoned remains unaffected not only by the
judgment itself, but by an incidental mention of it as mandatory or as
performing an unlawful act.
No doubt the United
Kingdom's position was difficult, for she could not, either at the beginning or
during the case, bring before the Court a country which had not accepted the
Optional Clause and was not at all in the same position as Albania, who was
bound by the Security Council's decision to accept the Court's
jurisdiction. It was also useless to
suggest a special agreement to the third State, in the course of the procedure,
especially if the said State, having obtained communication of the documents,
took no steps to intervene in the
proceedings.
In any case, the Court
could not extend the limits of its jurisdiction, nor could it do so implicitly
by expressing opinions in concreto regarding the conduct of a third State, no
matter in what sense.
16.-Accordingly, after
eliminating all the conceivable hypotheses, we are obliged to conclude that the
laying of the mines was the work of an unknown author. But Albania could nevertheless have been
aware of the existence of the mines, and a State which is informed of a
prejudicial act committed by another and does nothing to prevent it incurs the
same responsibility on the ground of the unlawful act, without any
attenuation; even if it was unable to
prevent the dangerous consequences it was none the less obliged to make known
the danger.
But how can we satisfy
ourselves as to a fact which cannot be directly verified?
A condemnation, even to
the death penalty, may be well-founded on indirect evidence and may
nevertheless have the same value as a judgment by a court which has founded its
conviction on the evidence of witnesses.
It would be going too far
for an international court to insist on direct and visual evidence and to
refuse to admit, after reflection, a reasonable amount of human presumptions
with a *91 view to reaching that state of moral, human certainty with
which, despite the risk of occasional errors, a court of justice must be content.
17.-Certain other
presumptions have been raised against Albania which are definite, though not of
equal force. First, her passive
attitude after the discovery of the mines, which ought to have led her to
protest energetically. But she declared that these facts had nothing to do with
her, and her immediate and reiterated complaints to the U.N.O. were a
reasonable counter-indication; those who have something to fear do not
generally ask help from the authorities.
The absence of signals on
October 22nd may also be explained by the uselessness of a warning which had
already been rejected in advance by the note of August 2nd.
In the same way, her
opposition to the sweeping cannot be exaggerated into fear of discovery of the
corpus delicti, Albania having raised objections only to protect her
sovereignty over her territorial waters.
Here we come to an
argument which the Parties had used for directly contrary purposes: the possibility that Albania might get rid
of the mines before the operation of November 13th. But such a hypothesis is not admissible, for, besides the great
uproar caused by the events of October 22nd throughout the whole world there
would certainly have been the discreet watchfulness of the United Kingdom. Besides, the operation would have been much
more difficult than the laying of mines, even if the exact number to be swept
were exactly known.
18.-There are however
other indications which can be regarded as definite, certain and concordant.
Thus, there is the
possibility of the minelaying having inevitably been seen from the land; the Experts' last report has much increased
the probability of this, whether there was a look-out post at Denta Point at
the time, or even if there was not.
On the other hand, Albania
claimed to prohibit strictly any passage of a foreign ship in the zone where
the minefield was; and it might be
admitted that the incident of May 15th was, by anticipation, an application of
the doctrine publicly announced a few days afterwards, and applicable even to
merchant ships, e.g., the U.N.R.R.A. tug.
The application of the United States to send destroyers to take away its
military mission which was leaving Albania was made the subject of a complaint
by the latter to the U.N.O.
The existence of secret
military orders, not communicated to the Court, might be considered as
supporting this view; so might also the
somewhat inexplicable remark in the note of *92 October 29th: 'The Albanian Government will take no
responsibility if this operation is carried out in its territorial waters.'
Strictly speaking, it
might be held that under ordinary circumstances, the Albanian Government could
not have had no part in the laying of the mines, or at any rate could not have
been unaware of the fact.
In spite of all, though the conclusions of
the Expert enquiry covered a number of hypotheses, the author, the time and the
method of the minelaying continue to be unknown.
The absence of any such
explanations makes it very difficult to express a definite opinion regarding
Albania's cognizance of facts of such uncertainty; we cannot therefore be
regarded as overprudent if we hesitate to declare that in this case Albania
manifestly acted in bad faith.
The existence of similar
doubts was revealed in the Security Council when that body accepted the
proposal of the French representative to replace the words 'with the knowledge'
by the words 'without the knowledge';
although this was not a judicial decision, the alteration was something
more than mere courtesy (122nd Meeting-March 25th, 1947, p. 596).
19.-Moreover, a
declaration of such gravity is in no way essential for the success of a claim
of an exclusively pecuniary character.
Once the inadequacy of the
evidence enables us to refrain from stating that Albania was indisputably
cognizant of the laying of the mines, the same rule of relativity applies as
regards a statement that Albania was unaware of the fact. True, it is not possible to prove it, but
nevertheless one can examine whether Albania ought to or could have had
cognizance of the matter.
Even if it is not possible
to clear up the mystery and to discover the authors of the act, or those who
were aware of it but did not warn shipping, one must not give up hope of compensating the victim
without having first considered every other method of giving him satisfaction,
except on the ground of an intended wrong, first on the ground of unintentional
culpa and finally on the ground of presumed or merely objective responsibility.
The victim retains the
right to submit a claim against one only of the responsible parties, in
solidum, in accordance with the choice which is always left to the discretion
of the victim, in the purely economic field;
whereas a criminal judge cannot, in principle, pronounce an accomplice
or a principal guilty without at the same time establishing the guilt of the
main author or the actual perpetrator of the offence.
20.-In examining the case
from the standpoint of culpa, whether by action or omission, one is struck in
the first place by the weakness *93 of the Albanian defences along a
deserted coastline many kilometres in length, with a few centres of population
which are unprovided with easy means of communication.
A long and detailed
discussion took place on the efficiency of the coastguard and the possibility
of minelaying being unobserved by the population and especially by the
guards. Much was said of the facility
of such an operation, the methods and the time taken; but it would be difficult to reconstitute all the details of an
event which might have taken place on an unknown day, or rather night.
The Experts endeavoured to clear up matters
by trying to indicate conditions similar to those that might have been found in
the district at that time; but in the
realm of the conditional there is always a risk of error.
To sum up, the slender
arguments of the defence have in no way excluded the fact of a jealous and
mistrustful watch over all that happened in the Channel; events of minor
importance were the subject of reports and international denunciation. Minelaying, however rapidly done, and
however skilful the crew, would very probably have been observed.
It has been suggested on
the other hand that the minelaying might have been carried out by a ruse, with
all lights on. But that would surely
have attracted attention; on October
22nd the lights of the vessels were followed for a long time.
Even if we exclude all possibility
for Albania to increase her defences in men or material, it ought to have been
recognized that Albania, in any case, failed to place look-out posts at the
spots considered most suitable when the coast defences were organized about May
1946. Albania must therefore bear the
consequences. The Experts' last report
made clear to the Court the accessibility of Denta Point from the sea, at any
rate, and thus did away with the reasons for the absence of the look-outs which
has been commented on.
The assertion by Albania
that the watch was insufficient or ineffective or badly kept goes against
herself, even if the purpose of this watch was something
quite different, namely to stop incursions by neighbours. It should be noted, also, that this aim
would be incompatible with the prohibition of passage to all other
countries; the general character of
this announcement has certainly aggravated Albania's responsibility towards
third States.
In this connexion, we must
not risk contradicting ourselves; the
fact that the watch was normal, or even exceptional, was justly invoked as an
argument favourable to the existence of culpa, i.e., cognizance of the mines; but this circumstance would also serve as a
proof of mere negligence if the presumptions were not sufficiently strong to
warrant a more serious charge.
*94 21.-This being so, the possibility of
negligence on the part of the coastal Power, involving that Power's
responsibility, cannot be set aside; this responsibility would even be
increased if we consider the facts in the light of the new principles
concerning culpa referred to above.
Thus, for example, though
the laying of the mines might be regarded as an event that could not be
foreseen by the coastal State, it would certainly not fulfil the other
condition that is requisite to comply with the description of force majeure or
an act of God, that of inevitability.
It matters little that the
guard maintained may have had other objects in view, once it is admitted that
it would have sufficed to discover the operation and to drive off the
perpetrators by the same means which were used with the object of driving off
the British ships on May 15th, namely by firing with the guns facing the spot where the minefields were
discovered.
No doubt Albania might
have put forward one solid argument when confronted with the theory of culpa or
even of risk: the fact that she had
been excluded from the work of mineclearance in her territorial waters when she
was refused a seat on the mineclearance boards and this security task was
transferred to others. That was the
ground for the vote of the Syrian representative in the Security Council,
refusing to admit the responsibility of Albania which seven other Members had
admitted. He stated that, in the
particular case, the duty that every sovereign State had to possess the means
and the capacity to protect its territory and to make its channels of
communication secure was non-existent owing to the war.
But the case was presented
to the Court under a different aspect, for Albania agreed that a new minefield
had been laid. There was no longer a
responsibility for failing to sweep mines-a task from which Albania had been
excluded- but for the laying of a new minefield at a time when Albania was
exercising full sovereignty and was herself guarding her own coastline.
Accordingly, in this case,
there is no need to speak of risk; the
presumption of culpa is sufficient and is quite in its place in a case of
recognized and admitted vigilance. If
looked at in concreto or from the average standpoint of bona res publica the
conclusion is the same.
The foregoing
considerations lead us to conclude, although this is a case in which the author is uncertain, that, in
international law, Albania is responsible.
22.-It is of small
importance that this is a case of a quasi-delict; for the argument majus ad minus would fully justify a conclusion *95
(quite in conformity with the litis contestatio, or rather special agreement)
in which the purpose of the claim is compensation; this becomes even clearer when we compare it with the
counterclaim.
No misinterpretation of
the causa petendi could cause it to be given another legal name than that
proposed by the Parties. The Court
might give this name to the same facts as have been alleged and proved in these
proceedings, either to reach the same conclusion as the Parties have proposed
or, for instance, to reduce the amount of damages or of the penalty. Only if it kept to a form more rigid than
that of the legis actiones, or similar system now abandoned, could the Court
think of prohibiting such a solution.
The principles which, at
this moment, govern the system of every procedure could only be interfered with
if the applicant laid down, as a conditio sine qua non for the success of his
suit, a finding of criminal intent. In
that case, the exceptio res judicata would not operate in regard to a new claim
founded exclusively on culpa.
In this case, on the
contrary, Great Britain has not failed to allude to the doctrine of simple risk
and has even claimed its application.
23.-If the existence of a culpable intention
had been admitted, there would be no room for justification or attenuating
circumstances; such a brutal act could
not be justified on any pretext.
The disproportion
observable in the reaction would persist even if something like a
praeterintentional delict were involved, e.g., the author could not expect that
the vessels would pass that way perhaps because he thought the minefield was
outside the swept channel. Nor can much
attention be paid to the fact that the mines would have been laid to damage
particular individuals, while the risk of damage to a third party existed, as
would be the case. Criminal law does not admit of a reduction of sentence in
the case of aberratio ictus.
24.-But whether culpa or
risk is the criterion, the conduct of the victim can be taken into account by
reducing the degree of responsibility and consequently apportioning the
damages.
Needless to say, damages
are not in any way a penalty and cannot therefore be increased or diminished
according as the conduct is estimated as gravissima or levissima culpa. Courts of justice always arrange to examine
the culpa in concreto, in estimating the loss to be made good.
*96 International justice also is subject to
this moral influence which GEORGES RIPERT mentions several times.
As J. PERSONNAZ points out
(La Reparation du Prejudice au Droit international public, Paris, 1938, pp. 106 et sqq.),
international tribunals have often taken into consideration the degree of
gravity of offences, negligence or the culpa of the victim, and have modified
the damages accordingly. Arbitrators
have several times made very clear declarations of principle on the point: e.g., the British Commissioner in the
Alabama case (Rec. LAPRADELLE and POLITIS, II, 825), who considered that
reparation should not only be proportionate to the loss caused by the culpa,
but also to the gravity of the culpa itself;
or the arbiter in the Delagoa Bay case, who held that the culpa of the
victim justified a reduction of the compensation (LA FONTAINE, Pasicr. int., p.
307).
In this case, several
circumstances mentioned above or recorded in the counter-claim might, if the
case arose, reduce, to a certain extent, the amount of the reparation. This would no doubt be incompatible with a
condemnation based on the wrongfulness of the act, but it would be applicable
to any one guilty of an act in the nature of an error.
25.-As regards the
assessment of the reparation, it must be remembered that the application was
replaced by a kind of novation in the Special Agreement, which modified the
normal course of procedure.
It is true that a
renunciation cannot be presumed; but in
a case of novation, an express reservation must always be made, as in the case
of a guarantee for a debt.
Moreover, the United
Kingdom knew the two possible solutions exactly: the solution which it had
proposed in the Security Council: a
simple declaration of responsibility, reserving a subsequent settlement; and that which it preferred in bringing the
matter before the Court: a claim for a
fixed sum in damages. Now, when
drafting the Special Agreement, Great Britain chose the first method, and
therefore cannot claim to come back to the second, and to rely on a mental
reservation supported by vague references in the other documents, and set up
again, at the last moment, by a definite allusion to the assessment of damages.
It is not exactly a
question of competence, but of determining the content of the petitum.
A comparison between the
claims set out in the Special Agreement also shows that, in both cases, a
reference was made to responsibility and to reparation, only in order to point
out the difference in their nature. The
United Kingdom had in view only a monetary reparation, and Albania a different
reparation of a purely moral character.
Thus, the clause was not purposeless, but the giving *97 of a
definite indication was deliberately avoided, both as regards the nature of the
moral satisfaction, and as regards the amount of the material compensation.
Moreover, if any doubt
subsisted, it would not be dispelled by an interpretation unfavourable to the
debtor and in favour of the negligent creditor.
26.-One might also emphasize the necessity of
adding something to the declaration of responsibility, in order to avoid an
interpretation that would render the Special Agreement ineffective. In other words, an endeavour would be made
to give practical effect to the clauses adopted by the Parties.
But it must be pointed out
that the Special Agreement consists of a simultaneous filing of two claims,
mutually submitted by the Parties, and of a purely declaratory nature.
In municipal law, awards
are as a general rule executed by compulsion, and formerly a decision void of
such effect would not be admitted-campana sine pistillo. But as procedure has developed, the
existence of purely declaratory awards has come to be admitted, especially in
Germany and the United States: the applicant is content-for some reason-to have
his right declared, without desiring that it shall subsequently be rendered
effective; at the same time, however,
he retains the right to bring another action of a purely executory nature: actio de judicato.
But what is exceptional in
municipal law is normal in international law.
Decisions against sovereign States were not directly executory, and were
founded only on their high moral value, calculated to secure a voluntary
submission. It was the San Francisco
Charter which first provided for giving effect to decisions of the International
Court of Justice by a procedure sui generis, the extent of which will be
determined in each case by the Security Council.
The adoption of a special
agreement must not therefore be considered exceptional, or useless, or as
involving merely the abandonment of a claim. Naturally, it presupposes mutual
renunciations, limiting the effect of the Court's decision to the main fact of
recognition of responsibility, and regarding essentially the purpose of international
justice as being to declare the right.
Additional matters, such
as the estimation of the loss and the method of payment, have been left by the
Parties to other procedures, more favourable to their interests, and to be
determined in the future.
27.-The origin of the
counter-claim is Albania's contention in regard to passage through the North
Corfu Channel. This claim concerns two
different issues: the passage of a squadron
through the Channel, and the subsequent minesweeping.
*98 The fundamental nature of such a prohibition
was certainly disavowed in the discussion in the Security Council; and Albania asserts that she never intended
to exclude merchant ships; this would,
however, involve a literal interpretation of the note, and even the incidents
already mentioned.
After this withdrawal, it
must still be considered whether the measure was lawful or not as regards
warships.
The right of passage of
foreign vessels through the territorial sea is founded on freedom of trade, which presupposes freedom
of navigation as the principal means of its accomplishment. But an opposition between these two
conceptions of freedom cannot be envisaged, even to justify the difference
which certain writers proposed between a simple passage and an entry into
ports. No doubt, any passage leads up
to an entry into a port of some country.
But it is undeniable that the two acts are treated differently, and
involve greater or less restrictions on the riparian State. But this does not do away with the postulate
that freedom of navigation flows from freedom of trade, a much wider economic
concept.
From the time of the
League of Nations, this problem has been of exceptional importance owing to the
references to it in Articles 16 and 23 of the Covenant, and the setting up of
the Committee on Communications and Transit, and the holding of the Conferences
of Barcelona in 1921 and Geneva in 1923.
The idea of the transit of merchandise is thus of special importance. In the present system, it is less
important; but it is undeniable that,
since the San Francisco Charter, it has not been essentially modified.
But the position is quite
different as regards the passage of warships, both as concerns the principle
and, in many cases, its application.
No doubt, this transit is
also founded on freedom of navigation;
but here the same means serves different ends. And in consequence we arrive at different conclusions. We must mistrust any hasty analogy, and
reject explanations such as that of
FAUCHILLE, who considered a navy as an accessory to a merchant fleet, just as
in the days of corsairs and piracy.
28.-A number of writers
hold that the right only amounts to what may be described as a tolerance,
subject to regulations somewhat wider than those usually governing technical,
health, and customs matters, and which are also applicable to merchant ships.
Others, however, favour
the view that equality of treatment has to be accorded.
*99 On the other hand, the United Kingdom,
founding itself on Article 38 of the Court's Statute, has contended that custom
prevails over doctrine, though it admits that this Article does not establish
an order of precedence for the different sources of law.
But it is very doubtful
whether a customary practice in this matter can be shown to exist, owing to the
vagueness of the precedents. As in the
case of possession, these uncertainties are a bar to the causative and
confirmative action of time. And the
mere lapse of time, according to customary law, does not suffice to establish a
title by prescription: in facultativis
non datur proescriptio.
A 'lateral passage'
through the narrow belt of territorial waters -as distinct from a passage
through such waters on the way to or from the ports adjacent to them-is not a
common occurrence even for merchant ships, and is exceedingly rare in the case of warships. Indeed, it may be said to arise only in
canals or straits, a subject which will be examined separately. The notification of an intended visit to a
port is not infrequently additional to the notification of a simple passage
through territorial waters. Indeed, in
the present case, we observe that, in the programme for the Mediterranean
Fleet, separate notice of the intended movements was to be given, both to
Greece and Egypt, while it was indicated that a simple visit to certain
Egyptian ports might be paid by the Commander-in-Chief.
There would be no valid
reason for imposing greater restrictions on the rights of the coastal State in
the case of warships. It would of
course be an abuse of this right if their passage were prohibited without
proper reason, when no danger threatened, simply from a desire to injure, or
even out of caprice or levity.
Permission to pass,
something far more useful, which neutral countries almost invariably grant to
warships in war time, has its origin mainly in the desire to be impartial
towards belligerents and not to forbid acts which are harmless, on condition
that they retain that character. The
precarious nature of such permission is confirmed by the fact that, even in
peace time, the passage of warships through certain straits in which transit is
regulated by multilateral treaties is prohibited or limited.
In short, there are no
significant or constant facts which could justify the assumption that States have agreed to
recognize a customary right of freedom of passage for warships through the
territorial sea. Thus, the vitalizing
quality of repeated action, by means of which such a custom is established, is
lacking.
The tendency towards
freedom could not be admitted without reservation in the case of territorial
waters, especially for defence reasons.
Reference may be made to the extension of the rights of neutrals
(Annuaire de l'Instit. de Dr. int., Paris, 1910, pp. 37, 91, etc.), the
creation by equidivision of adjacent or contiguous waters, *100 the protected
zone under the Alcohol Laws, and the laws relating to oilfields (see
BUSTAMANTE, La Mer territoriale, Paris, 1930, p. 156).
In its Opinion of December
11th, 1931, in the case concerning access or anchorage in the Port of Danzig of
Polish war vessels, the Permanent Court of International Justice declined to
admit an extensive interpretation of provisions-including those of the Treaty
of Versailles-that were in derogation of general international law; it refused to read a right of free access
and sojourn for warships into a clause which was only concerned with commercial
traffic, imports and exports, matters which fall exclusively within the sphere
of merchant shipping. And the Court
declared in its finding that the Polish claim had not been established. (P.C.I.J., Series A./B. 43, pp. 145 et sqq.)
29.-The United Kingdom
invoked the proceedings of the Hague Conference for the Codification of
International Law; but in doing so, it
was obliged to minimize a large part of the
results of that Conference, on which Albania also relied.
Thus, the United Kingdom
contended that the bases of discussion, approved by the Conference purely for
the purposes of legal science, represented a sort of compromise, necessary for
the future interpretation of the rule, and that, on the contrary, a simple
observation, adopted at the last moment, had more weight than the 'bases of
discussion' to which it related.
Whatever may be the justice of these conclusions, a study of the
discussions and documents in the valuable Reports of that distinguished International
Law Conference might lead to conclusions of a different character. The preliminary report, for instance,
emphasized the confusion in the replies concerning existing law and those
concerning lex ferenda (L.N., C.74, M.39, 1929, p.7).
The first drafts prepared
in 1926 by SCHUCKING, former Judge at the Permanent Court, and an upholder of
the right of free passage for warships, might leave doubts, when we compare
Articles 7 and 12. The first of these
reserves only the right of sojourn for warships, and Article 12 deals with all
matters of passage (L.N., C.196, M.70, 1927, pp. 59, 62 and 72); the result of a second consultation of
States by means of a questionnaire adopted by a Revision Committee, was the
same (IX and X, L.N., C.74, M.39, 1929, p. 105). Only after further replies had been received was the clear
difference between these two cases (bases 19 and 20) recognized (L.N., C.74,
M.39, 1929, pp. 71 to 75). It was retained
and accentuated during the discussion and approval of the draft by the Second Committee.
A study of all the replies
to the two series of questions would not justify us in concluding, outright, in
favour of equal treatment for both categories of ships. For very few States replied definitely in
favour of that view.
*101 For instance, there were not only two
countries, Bulgaria and Latvia, that opposed the right of free passage of
warships; other States also expressed a
similar opinion in their replies, or during the discussion. Great Britain felt it was necessary to
destroy the radical and coherent attitude adopted by the United States at this
Conference. Yet it is difficult to see
how the written and spoken arguments of the American representatives, founded
on the notion of menace put forward by ELIHU ROOT and upheld in the preliminary
studies of the Harvard Law School, could be demolished by third parties,
however excellent their arguments.
Great Britain's attitude
was not very clear either: in the
preliminary replies (doc. cit., pp. 67 and 74), Great Britain alluded to rules
submitted to the Conference, the non-publication of which is regretted by GIDEL
(Dr. int. publ. de la Mer, Paris, 1934, t. 3, p. 283): and in the discussion she asserted that the
proposal for a mere tolerance, submitted by the United States, did not differ
from the British proposal for the maintenance of the status quo (L.N., C.351,
M.145 b, 1930, pp. 62-3). Such is the
impression left in the minds of the writers who commented on the discussions at
The Hague: e.g. BALDONI (Il Mare
territoriale, Padova, 1934, p. 94, n. 1), and JAUREGUIBERRY (La Mer
territoriale, Paris, 1932, p. 92).
Differentiation between
the two cases continued to be the basis of the Conference's work, and it
reappears as a leitmotiv in the draft proposal; the difference between the French and the English texts, though
often referred to, was disregarded.
The rapporteur himself
pointed out that Article 12, concerning the passage of warships, corresponded
to what was generally recognized as the law at that time.
30.-Similarly, a study of
the domestic laws of various States -although most of them make a distinction
between simple passage, sojourn in territorial waters and entry into ports-does
not convey an impression clearly in favour of freedom of passage for warships,
even if a large margin is allowed for the always dangerous argument a contrario
sensu.
To sum up, it is evident
that all the arguments invoked are clouded in confusion, at any rate
sufficiently to bar the recognition of a custom in accordance with traditional
requirements.
In short, the passage of
warships through territorial waters is subject to a precarious regime which may
be modified, in a reasonable manner, by the coastal State.
It is a regime analogous
to that adopted for air traffic, in which a passage over foreign territory, although more
dangerous, is infinitely more necessary than a passage through a strip of territorial
*102 sea of three miles. The
tendency is to allow free passage for commercial aircraft, but to deny any such
right to military planes, in regard to which the territorial State may act as
it thinks fit.
31.-The terms of the basis
of discussion approved at The Hague in 1930 also retain the reservation for
exceptional circumstances, which is admitted by those who claim an actual right
of passage for warships, or who place them on the same footing as merchant,
ships. What may be an abuse in normal times
is made lawful by circumstances.
Thus, insistence on
authorization or prior notification, which is, in general, excluded from the
text, would be justifiable in certain circumstances; for instance, in a state of war, which in fact is a great
handicap to the movements of merchant ships, as BRUEL has mentioned several
times.
Then there are the cases
of tension between neighbouring countries, to which GIDEL alludes, when
frontier incidents are constantly occurring;
and these may well justify the action of a weaker State, alarmed by the
territorial claims of another.
Similarly, absence of
diplomatic relations must be recognized as sufficient ground for refusing leave
of passage; since this presupposes the
existence of good relations. BUSTAMANTE
has specially emphasized this point (op. cit., para.
173). GIDEL supports him, in spite of
the silence of the Hague Conference on this subject (op. cit., p. 285).
The laws of certain
countries only grant passage to countries at peace (France, October 29th, 1929, Art. 1), to ships of friendly
countries (Bulgaria, November 4th, 1922, Art. 1), or even to vessels of
recognized foreign Powers (Belgium, December 30th, 1923, Art. 2).
The United States
established by proclamation a general prohibition of passage for French and
English vessels, save in distress or with special permission, following on the
rupture of diplomatic relations with France in 1793, and with England in 1815.
In the
Landwarow-Kaisiadorys railway case, the Permanent Court of International
Justice, in giving its Opinion of October 15th, 1931 (P.C.I.J., Series A./B.
42, pp. 108 et sqq.), took account of the existing abnormal nature of political
relations between Poland and Lithuania in time of peace, having regard to the
terms of the Barcelona Convention on the subject of the safety or vital
interests of the countries which were bound to facilitate transit.
Belgian law (Art. 11) and
Netherlands law (October 30th, 1909, Art. 14) allude to any other exceptional
circumstance.
The United Kingdom stated
that it would be willing to admit that certain events might prejudice what it
regarded as an *103 undoubted customary right; but at any rate it refuses to admit that the coastal State should
be the sole judge of the soundness of these
reasons.
But the Belgian law (Art.
11) states definitely that the country entitled to benefit by the reservation
is alone entitled to regulate its application;
and the Italian law (May 28th, 1928, renewed in 1933) and that of
Yugoslavia (June 20th, 1924) provided for abolition of the tolerance without
reason given. BALDONI (op. cit., p. 93) alludes to revocation ad nutum, and
RAESTAD (La Mer territoriale, 1913, p. 173) considers revocation as an
unfriendly act, but not contrary to international law.
It does not matter that
insistence on authorization is equivalent to prohibition; this is a consequence provided for in the
laws that have been examined, in doctrine, and in Article 12 of the Hague
draft. Regulation exists normally at
all times, and it is opposed to the principle of exception, to which may be
added previous permission; on the other
hand, it would be useless to provide for modifications in abnormal circumstances.
Abuses may no doubt
occur; but there are methods of
judicial settlement of international disputes to overcome them.
In the present case, it is
beyond dispute that Albania was not on friendly relations with her neighbours
to the South, and that no diplomatic relations existed between her and Great
Britain. But if Albania acted wrongly,
it was a fait accompli, the withdrawal of which could only be sought by
peaceful means.
Lastly, we need not
concern ourselves with the form of the regulation; for it is not subject to any
rule; only the Italian law (cit. Art.
9) indicates the method of publication.
But if exception were taken to an anticipated application of the
measure, an objection could only be made after the notification of the prohibition
and its receipt. The same applies to
the absence of grounds in the notification itself; for the grounds were made clear in the diplomatic correspondence,
and were not disputed.
32.-Are the above
conclusions affected by the fact that the territorial waters form part of a
strait?
In the conflict between
the interests of the community and those of special groups-a conflict which
underlies maritime law-the balance has frequently wavered between argument and
counterargument: the controversy
between mare liberum and mare clausum is not yet closed. And certain points have been left behind in
the course of the evolution, such as the King's Chambers in the Stuart period,
and, in our day, what are known as historic bays.
The predominance of the
general interest weighs down the balance against the coastal State, when, by
some geographical *104 accident, a part of its maritime territory
constitutes a strait. For the advantage
of the world as a whole, it has to suffer a sort of expropriation, for which no
compensation is offered, but which is of course limited to what is essential
for the public good. BRUEL speaks of an
international mandate or of negotiorum gestio. (International Straits,
Copenhagen-London, 1947, Vol. 1, p. 254;
Vol. 2, p. 424.)
Law constitutes a system
of adjustment, and in it motives are appraised by the same process within a
single country and between different countries. As a result, there are frequent appeals from international law to
the rules of private law, which are more precise and are technically very
rigorous.
For instance, there has
been much controversy in regard to this transfer of principles from the theory
of rights in real property, and especially from the notion of servitudes. But the extension of their fundamental rules
is not to be doubted. Take, for
instance, the right of ownership; it is
only subject to limitations in cases of necessity (enclave, etc.). Consequently, the settlement of other
cases-relating not only to the superfluous, but also to the useful-is left for
agreement between the parties concerned.
The field of exception, and consequently that of interpretation
civiliter uti, still remains.
Similarly, one cannot with
impunity restrict the rights of a State without adequate grounds, whether such
rights are derived from the principle of sovereignty or not. The existence of public necessity cannot be
deduced from the private interests of third States, whose requirements may be
above the average-as has happened in history-but it must be founded on an impartial
balancing of advantage and disadvantage in general, by which the burdens thrown
upon the coastal State, by reason of a mere geographical accident, may be assessed.
33.-This shows the extreme
importance of the problem of straits.
Some writers consider that the wide differences between one strait and
another prevent the adoption of any general rule. The situation of the chief straits and artificial channels is
already governed by special conventions, and new measures will have to be
framed to deal with cases that may be found to be of importance in the
future. According to this theory, often
referred to at The Hague, all other straits will be subject to the normal rules
applicable to the territorial sea.
Opposed to this is another rule, equally radical, that all straits are
subject to common rules forming part of a general regime applicable to
straits-a regime that is only supplemented by more detailed rules for
individual straits in the more important cases.
The most reasonable
solution is nearly always to be found in a middle course. The ideal would be the adoption of a general
regime for straits of a certain kind, supplemented by special rules for
individual cases; while ordinary
straits would be dealt with in *105 accordance with the general
principles for the use of the territorial sea.
34.-But before reaching a
conclusion, we must emphasize the connexion between the question of straits and
that of the territorial sea. The
passage of merchant ships through any strait is merely a particular case
covered by the rule for the territorial sea, and no problem arises. Merchant ships can use a strait without having to show that they obtain
advantages from the use of that route.
Decisive proof may be
found in the fact that straits were not dealt with in the preparatory work of
the Hague Conference, save as regards the method of dividing territorial waters
between two coastal States. It is only
when the distinction came to be drawn between merchant ships and warships that
the need of settling the problem regarding the latter arose.
The question is not only
one for warships. Here we are no longer
dealing with the simple application of a general principle; for the notion of freedom of transport is
divorced from the commercial purpose with which it is normally related. And as this notion of freedom loses much of
its significance and prestige when invoked for requirements of a different
kind, we shall have to find some other criterion by which to measure it. The place of economic criteria will have to
be taken by geographical considerations, and an endeavour must be made to find
means of communication that are of reasonable utility.
For this reason, mention
is generally made of Gibraltar, Bonifacio, Hongkong, etc., as being under a
special regime, apart from the straits subject to conventional rules, differing
from the ordinary rules applying to territorial waters.
First, it will be observed
that the essential condition for placing a strait in an international category
is that it should be used for international traffic; but it would be over-simplifying the problem
to consider only the fact that the strait gives access to the open sea, and not
merely to places in interior waters.
It is essential to examine
the circumstances in order to appreciate the intrinsic importance of each
individual route.
Of course, every strait
offers a passage that shipping may make use of; but conversely, it might be argued that no strait was
indispensable for shipping; for it is always possible to find some other route
connecting two seas, as happened, for example, before the Suez and Panama
Canals were opened.
But we could not approve
unreservedly a restriction of the rights of the coastal State in order to
satisfy all the military requirements of third States, even if these
requirements were ordinary *106 manoeuvres or mere courtesy voyages in
which warships might economize a few hours' steaming. No other view could be admitted unless the closing of the strait
rendered navigation impossible or very difficult-conditions which have led to
the regulation of the more important straits and have justified certain other
exceptions.
The notion of an
international strait is always connected with a minimum of special utility,
sufficient to justify the restriction of the rights of the coastal State-which
rights must be assumed to be complete and equal to those of other States. To PILLET'S doctrine of least sacrifice, we
might add SEFERIADES' maxim: 'The greater the use of the passage .... the
more extensive become the infringements of the rights of the coastal
States.' (Rec. des Cours, Vol. 34, p.
439.)
A classification of
straits in the order of their importance may therefore be considered as
irrefutable. This is shown in several
ways by BRUEL, and a study of other writers leads to similar conclusions,
expressed very clearly: main highway,
independent route, shortest and most necessary way, communication between two
free seas, two high seas, highways, only way, etc.
35.-At The Hague, in 1930,
this problem was dealt with on current lines;
but care must be taken lest, by a too hasty perusal of the terms there
adopted, we should be led to include any and every strait-even those which
would render the passage longer or more difficult-under the second observation
relating to Basis 12.
The adoption of the
observation to Basis 12 without opposition gives great weight to it; but we cannot forget the unexpected manner
in which the question was put at the last moment. Stress must be laid on the words 'serving for international
navigation', added to the terms previously employed in a number of documents
that referred merely to communication between two parts of the open sea.
At this point, SCHUCKING
referred to the exceptional case of ships which entered a strait and then found
it impossible to return to their country! (Proceedings
of the Conference, Vol. III, 1930, p. 171.)
BRUEL, who is otherwise
favourable to the passage of warships, refers to the fluctuation that prevents
any definite statement on the one side or the other (op. cit., Vol. I, pp.
202-5).
But the notion of
international strait and also the expression 'highway', dear to great writers
like Oppenheim, and introduced at the beginning of these proceedings by the
United Kingdom, might be inserted in the 1930 clause.
36.-Can the Corfu Channel
be deemed to be a 'highway'?
*107 A mere glance at the chart shows how
difficult it would be to include it in such a classification, and indeed no
qualified author has yet attempted to do so.
This Channel cannot serve
the needs of international shipping, because it does not shorten the route, and
offers no facility for manoeuvring. So
far as the Port of Saranda is concerned, it is of no use, even for voyages
southward. True, it is of value to the Port of Corfu for northward
traffic; but the distance saved by
using it is less than 100 miles. In a
few hours, the Leander steamed almost round the island, whose southern shore is
still fringed with mines round which she had to pass.
One of the British experts
quite naturally told the Court of important international routes, particularly
those leading to the Dardanelles and coming from Alexandria or Suez and the
eastern Mediterranean.
The artificial Corinth Canal, which unites the
Ionian and AEgean Seas, thereby saving a considerable detour, would be of far
greater importance; nevertheless, all the authors who deal with it have
described it as a secondary route in the few lines they devote to it.
After October 22nd,
proposals were submitted to the Medzon Board for the establishment of new
routes to Corfu, either by sweeping a channel to the North or by the clearance
of minefield No. 530 to the South; and
in point of fact, the North Channel has remained closed for more than two years
without any serious prejudice to international traffic.
37.-We must examine
whether one last consideration might not turn aside the normal line to be
followed.
There is a sort of
condominium over the waters of the Channel, because one of its shores is Greek
and the other Albanian-though it is not the existence of one or of several
coastal States which confers upon a strait an international status: the Sound is between two States and the
Belts and the Dardanelles are between the coastlines of a single State.
The method of dividing the
waters of narrow straits is of small importance, for it does not concern third
Powers. On the contrary, in this
particular case, the situation of the Strait, on the frontier between two
States, would justify further restrictions as against third Powers, unless the
latter were able to prove the existence of special navigational interests.
A reference has been made to a statement by a
North-American technical expert on the Mining Board in regard to the Corfu
Channel; but it must be remembered that
the United States declared at The Hague that they and Great Britain were the
only States concerned in establishing the regime for the Strait of Juan de Fuca
(which is certainly of greater importance than that of Corfu), *108
whereas they regarded the Strait of Magellan as essentially international.
HYDE held this doctrine to
be abundantly justified, in comparing the Kiel Canal, which is clearly
international owing to its vital interest to trade, with Long Island Sound or
the Strait of Juan de Fuca, which are reserved for the interests of one or two
States (Int. Law, Boston, 1947, Vol. 1, paras. 150 and 155). Sweden also, in the reply to the Hague
questionnaires, claimed similar situations to that of the Kalmar Strait (L.N.,
C.74, M.39, 1929, p. 58).
We must not lose sight of
proportion. We may, however, conclude
that even the fact of its being a strait cannot be an argument for the United
Kingdom claim; but on the contrary is in support of the prohibition of passage
ordered by Albania, unless special permission be granted after notice, and
having regard to the abnormal circumstances at the moment.
And as regards the
facts-even well separated in point of time-any tolerance in times past might,
by a sort of prescription, create a right against Albania.
It goes without saying that this solution could
not be applied in the case of warships of the Power which possesses sovereignty
over the opposite shore of the strait, since there is complete equality between
the States directly interested in the passage of shipping-even of a
non-commercial kind-through the strait.
38.-Even if we regard
Albania's conduct as wholly or partly unjustifiable, we must disapprove of any
intervention designed to end it, and of any employment of force against force,
except in the heat of violent action as on May 15th.
As such a method of
enforcing an erroneous doctrine was abnormal, one might have hoped that those
who refused to tolerate it would refrain from acting in the same way. To answer:
vim vi repellere, would amount to referring the solution of a purely
juridical problem to the arbitrament of force.
As the reason of urgency had ceased to apply, the proper course would
manifestly have been to refrain from effecting the passage.
Apart from legitimate
defence, a counter-stroke confestim, 'hot pursuit', or an emergency, nothing
justifies the use of force, not even the pretext of reprisals. One violation does not justify another,
outside the lex talionis.
It would be absolutely
contrary to the spirit of the San Francisco Charter and to several of its
articles for a country to become judge in its own case. The coastal State also exercises power over
its maritime territory; and if it
adopts a new measure, this cannot be set aside by violence, even under the pretext of re-establishing the status
quo. The passivity of the party that
announced the prohibition constitutes a fait accompli and is under the
protection *109 of the old rule:
in dubio melior est conditio possidentis.
The forcing of an entry
into the ports of a country would not be justified in the present day, although
trade or civilization might profit thereby, as was the case in the nineteenth
century; still less is the forceful
passage of a strait justifiable, as in the case of Shimonoseki, in 1864.
The toleration of an act
of violence, on condition that its lawfulness were considered a posteriori,
would lead to anarchy in international life.
On the other hand, a state
of necessity, or even an irreparable injury, could not be invoked, merely
because of the difficulty of carrying out naval exercises which, incidentally,
had been arranged to take place elsewhere.
39.-National regulations
often lay down restrictions as to the number and tonnage of ships, the
repetition of visits, etc.; this is
evidence of the menacing character of warships, and serves to controvert the
erroneous argument that if one ship is admitted, a second must also be allowed
and then a third and a fourth, ad infinitum.
Moreover, if it is
recognized that the right of admission to a port is influenced by the number of
ships employed, we are led to conclude that the simple passage may be
influenced by the same consideration.
Even in the case of
straits, writers most favourable to warships, like FAUCHILLE, set limits on the right of passage,
e.g. concentration of a powerful squadron (Tr. de Dr. int. publ., Paris, 1925,
t. 1, Vol. 11, para. 507 [FN1]).
No doubt the memory of the
first incident justified certain precautions;
but in any case there was a manifest disproportion between the forces
employed and the object in view. That
was the characteristic feature of this passage, from a purely objective
standpoint, and without having knowledge of the instructions sent by the
Commander-in-Chief.
Moreover, we cannot
disregard the subjective aspect of the passage as several authors recommend,
especially in cases where documentary evidence has been produced by the party
accused of a passage not inermis et innoxia.
In this case, there was a naval demonstration, which would not be
admissible even as reprisals, as was said at the meetings of the Institut de
Droit international at Paris in 1934.
40.-Turning now to the
second operation, we note, to begin with, that Albania was not admitted to the
Medzon Board when the latter was constituted, and that proposals for her
admission, *110 merely as an observer, were unsuccessfully made on several
occasions.
In spite of the
predominant part naturally played by the United Kingdom on this Board, and on
the Central Mine Clearance Board, owing to her greater experience and large
navy, the failure of these proposals cannot be laid entirely at her door,
though the reasons given, and repeated during the proceedings, cannot be regarded as
satisfactory and are sometimes contradictory.
The assignment of Sector
18 A to Greece may be regarded as an unfriendly act on the part of the Board,
seeing that this Sector (like Sector 17, which had not been allotted to any
country) had already been swept, and Greece had not at the moment the means of
carrying out the task, and even asked for assistance from the United Kingdom.
It has already been
observed that at a critical moment the British had opened a channel which they
thought to be in the same position as that maintained by the Germans during the
war. In order to avoid undertaking
larger sweeping operations, it was preferred to follow what was considered the
easiest course, rather than the normal route, equidistant from both
coasts; though it must not be assumed
that the enemy chose the easiest solution;
on the contrary, he preferred a route which would be the most difficult
for his adversaries to observe.
But when, a year and a
half later, a dispute had arisen between Great Britain and Albania, it would
have been the duty of the former, if she was still interested in the passage
after the end of hostilities, to restore the Channel to its normal pre-war
condition. Though the enemy had
disturbed the former equilibrium, there was no reason for persisting in a
prejudicial course, after peace had been re-established. The exact situation of the mines was already
known, and a sweep would only have required
a few hours' work, as in the case of Operation Retail.
After the explosion, the
United Kingdom Government did not delay a decision to sweep, and notified
Albania.
Meanwhile, however, it
endeavoured to obtain the support or consent of the Mine Clearance Boards, by
proposing that it should itself undertake the operation, as a natural sequel to
the sweep in 1944.
But, on October 28th, the
Medzon Board did not approve, although it thought the sweep desirable, owing to
the political character which such an operation would assume in case of a
refusal by Albania. The Central Mine
Clearance Board was also reticent: on
October 31st, it recommended the sweep, subject, however, to suitable
conditions, including the agreement of the coastal State.
*111 41.-It had been said that the purpose of
Operation Retail was to protect shipping and provide access to local ports,
including Saranda, or even to relieve from responsibility the State that had
carried out the first sweep.
But the requirements of
navigation were not satisfied, and access to Saranda is not assured; for the sweep was not finished.
But the main object of the
United Kingdom is clearly defined in the Reply: collection of evidence, to ascertain the cause of the explosions
and to reveal the guilty parties.
On the other hand, it was
feared that any measure asked for from the United Nations and decided on by that body would be
ineffective and slow.
But none of these reasons
could justify such a unilateral action, the gravity of which would have been
more evident if the results had been negative.
Action for self-protection, decided on in cold blood, in contrast with
the inactivity at the time of the explosions, would also be out of place. The publicity given to the case would have
been sufficient to discourage any audacious attempt to get rid of the material
evidence of the outrage.
42.-Instead of taking the
law into its own hands in a case that was neither urgent nor, unfortunately,
susceptible of adequate reparation, it would have been easier and certainly
more appropriate for the United Kingdom to resort to a procedure of
conciliation, or even to have had recourse to the United Nations, especially in
view of the fact that Albania, though not a member, had already appealed to
that body. One could not assume in
advance that such a step would be met by a flat refusal by a country which
subsequently had to accept an invitation with much graver consequences, e.g.
that of entrusting the settlement of the whole dispute to the Security Council,
although it later raised an objection to a reference to the Court. The minesweeping should have been done under
the auspices of the United Nations, impartially and swiftly, in order to
forestall any change in the state of the Channel.
If international justice
does not yet possess satisfactory machinery, the responsibility rests on the
Powers, the majority of whom do not consider the moment arrived to invest the Court with
compulsory jurisdiction.
The Court cannot be blamed
for the limited means at its disposal, nor for provisions such as that which
allows a State to refuse to produce a document, as has happened in the present
case.
In spite of its
imperfections, we must not give up hope of seeing all disputes of a legal
character finding their way to the International Court. In that connexion, we cannot fail to notice
the anxiety which Great Britain has displayed on several occasions *112
to bring before the Court cases which, not long ago, would have perhaps been
settled in another manner.
Be that as it may, the
collection of evidence can never justify an act of intervention, such as has at
last been frankly and finally admitted;
such an act is repugnant to the letter and the spirit of the San
Francisco Charter. The world of to-day will no longer tolerate a practice which
has never been sincerely regarded as lawful, and one which allows the noblest
aims of humanity to be used, all too easily, as a cloak for the worst abuses.
A further use of force
must be avoided, especially one carried out in spite of discreet hints conveyed
by the international bodies immediately concerned-a use of force without great
regard for the other party, which was not even invited to send observers or to
enter into negotiations, after an initial protest by it, and a suggestion of a
mixed commission.
The argument based on the
absence of any claim in 1944 is insufficient, having regard to the conditions already mentioned,
which prevailed in war time. Moreover, up to the end of 1945 at least, there
was no stable government, recognized by other Powers, in Albania.
Albania might therefore
claim to participate in the marking out of the Channel, which was to become the
definitive route; for she had regained
her independence, which could not be presumed to be subject to conditions
incompatible with acquired sovereignty.
On the other hand, Albania
never showed a sincere intention of approaching Great Britain with a view to
settlement, as was required by the fundamental duty of every State to
co-operate in the interests of justice and international harmony, by means of
direct negotiations. On the contrary,
the more or less evasive tone of Albania's replies, though supported by legal
arguments, makes it possible to attenuate the United Kingdom's responsibility
and to lay less stress on her attitude of November 13th, than on that of
October 22nd.
43.-In addition to the
illegality of the operation, the means used were excessive; so that at first even the Admiralty
anticipated accusations of duplicity and of offence against Albania's
sovereignty.
Nor can the method used to
carry out the operation be forgotten, so far as the destruction of the mines
was concerned; for most of them were
left to drift.
It is true that the Hague
Convention lays down, as an essential condition of the use of such weapons, the
adoption of an appliance rendering them harmless as soon as they have broken loose from their
moorings. In any case, this legal
guarantee does not entirely satisfy us, and everyone believes that there still
remains a certain coefficient of danger.
It is of small importance that experts in *113 general reduce the
danger. We are entitled to mistrust
even the most accurate scientific instruments, and this case has furnished many
occasions of observing errors in apparatus and errors of the men in charge of
such apparatus, or who rely on indications given by it; cases of mines that have remained dangerous
have also been mentioned, and others in which the release springs have ceased
to operate, because of rust.
The mere desire of the
United Kingdom to explain the measures taken to destroy the mines would show
the desirability of such action, which however has been abandoned for other
reasons.
These mines might be swept
along by the current and found elsewhere, thus justifying complaints against
Albania, as happened when an American destroyer, on November 14th, 1946,
located a drifting mine off Durazzo, and reported it by signal, although it
could not be established that the mine had been released by the sweep carried
out some distance away the day before.
44.-We are thus led to
conclude that the United Kingdom was responsible for the operations of October
22nd and November 13th, 1946, which involved violations of Albania's
sovereignty.
No doubt, Albania does not
claim reparation for material damage;
what she has in view is merely the
application of a moral sanction.
In this domain, even more
caution is required than in municipal law.
Although premeditation has been found in the decision to carry out, and
in the execution of the two measures held to be illegal, it would be difficult
to draw a definite conclusion of evil intent, especially in regard to the
second operation: there had been the
previous incidents, and, more particularly, the recent memory of what was
almost a massacre. Further, some hesitation
is observed as to the method that the United Kingdom would take in order to
reach a settlement which she considered as urgent; whereas Albania took refuge in an unyielding attitude which only
served to increase Great Britain's suspicions, founded as they were on the
gravest presumptions.
On the other hand, we
cannot lose sight of the unusual manner in which the above measures were
carried out: even persons who claim to
have had no intention to injure, who invoke the qui juri suo utitur neminem
laedit, or even say they are not acting by caprice, are sometimes bound by the
consequences of a wrongful act, to which the measure or standard of conduct
required by a bonus pater familias (an old conception, still in favour) cannot
be applied.
Albania did not specify
any particular sanction. In the course
of the hearing, she confined herself to an allusion to the French *114
practice of sometimes awarding a token payment of one franc.
But under the Special
Agreement a pecuniary sanction has not been asked for and cannot be granted, even symbolically.
On the other hand, the
Court should break away from the familiar mediaeval procedure, which is not
employed nowadays even in schools, such as apologies, flag saluting, etc. All this is reminiscent of ultimata, which
are becoming more and more obsolete.
45.-There remains only one
moral sanction that can be applied without disregarding the absence of a claim
for the assessment of damages.
The matter cannot be left
to the future; for the sanction must re
ipsa be found in the Judgment. This
will be purely declaratory, and will state that the United Kingdom's conduct
was contrary to international law and in every way abnormal.
Within these limits, I
give satisfaction to Albania and hold that the counter- claim put forward by
her in the Special Agreement of March 25th, 1948, is well founded.
(Signed) PHILADELPHO AZEVEDO.
*115
DISSENTING OPINION BY DR. ECER.
[Translation.]
Part I of the Special Agreement.
I.
Criminal character of the incident on October
22nd, 1946.
Both the Parties have
stigmatized the incident of October 22nd, 1946, as a crime. However, the International Court is not a
criminal court. The Special Agreement
did not ask it to decide whether Albania had committed this crime, or had
participated in its commission as an accomplice. The Special Agreement requires the Court to give judgment as to
Albania's responsibility in international law, that is to say without
describing it either as a criminal or as a non-criminal (civil)
responsibility. But Great Britain has
founded her submissions in regard to Albania's responsibility primarily on the
allegation that Albania laid the mines or took part as an accomplice in laying
them, i.e., on an accusation of a definitely criminal character.
I regard the incident of
October 22nd, 1946, as an abominable international crime, very close to an act
of terrorism as defined by the Convention for the Prevention and Punishment of
Terrorism, dated November 16th, 1937, a convention which has unfortunately
never been ratified.
In my view there is no
doubt that this action was prepared, organized and carried out with a view to disturbing the
peace in the Adriatic and the peaceful relations between Great Britain and
Albania.
It is a fact that has been
established during the proceedings that Albania and Great Britain were desirous
in 1946, before the incident of October 22nd, of establishing diplomatic
relations. I refer to the Albanian note
of May 21st, 1946, and to the British Admiralty's telegram to the
Commander-in-Chief of the Mediterranean Fleet dated September 21st, 1946. The two States were negotiating for the
establishment of diplomatic relations.
The negotiations were not secret.
I am convinced that the Albanian statesmen could not have been intending
to effect an establishment of diplomatic relations with Great Britain by an
attack upon the British ships, either by participating in the commission of
such an attack or by failing to prevent it, by warning the ships. The logical conclusion must be that there
was somebody-perhaps a State, or perhaps a group of militarist adventurers
having ships at their disposal and acting on their own behalf, who were
resolved, *116 at any price, to prevent the establishment of diplomatic
relations between Albania and Great Britain-who wished to prevent the
attainment by that means of peace in that disturbed region. History, even in the twentieth century, has
furnished examples of such lawless acts.
The perpetrator of this
crime directed his attempt primarily against the four British ships, but, in my
opinion, he also wished to strike against Albania.
II.
The laying of mines by Albania.
Great Britain has
virtually abandoned the charge that Albania herself laid the mines and now
alleges that two Yugoslav ships laid them.
Nevertheless, Great Britain formally maintained that charge in No. 2 of
her final submissions. Albania submitted a conclusion (also numbered 2)
definitely contrary to the British submission.
The Court has stated in
its Judgment:
'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 the final submissions read in
Court on the same day, this suggestion was in fact hardly put forward at that
time except pro memoriae and no evidence in support was furnished.
In these circumstances,
the Court need pay no further attention to this matter.'
By this declaration, the
Court has, in my opinion, rejected the accusation to the effect that Albania
had herself laid the mines; but, in
view of the fact that Great Britain has definitely maintained and repeated this
extremely grave accusation in her final
submissions, I consider that Albania was entitled to have this British
submission explicitly contradicted.
III.
Participation of Albania in the minelaying (collusion,
complicity).
The alternative accusation
(and submission) presented by Great Britain is that of complicity. Great Britain employed that term in
paragraphs 77 (complicity) and 94 of her Memorial (direct complicity). The facts adduced by Great Britain in
support of this second accusation for the most part constitute complicity. The
Judgment has preferred the notion of 'collusion'. I am not particularly concerned with the terminology.
*117 In any case, what is meant is participation
in the laying of the mines, i.e., in a crime, having regard to the
circumstances of the incident of October 22nd, 1946. But this participation (collusion) of Albania in the minelaying
has not been proved. The Judgment
states that the facts alleged by Great Britain as evidence of collusion between
Albania and Yugoslavia, even so far as they are established, lead to no firm
conclusion, and it continues: 'the origin of the mines laid in Albanian
territorial waters remains a matter for conjecture. It is clear that the existence of such a treaty .... however
close may be the bonds uniting its signatories, in no way leads to the conclusion that they participated in a
criminal act.' I agree. But that statement is merely a partial
rejection of the second British theory (submission). That submission is not limited to Albano-Yugoslav complicity. It
does not even mention Yugoslavia. It
concludes in favour of the complicity (collusion) of Albania with the author of
the minelaying, whoever he may be. It is true that Great Britain has never in
her pleadings or speeches alleged any other collusion (complicity) than that
between Albania and Yugoslavia. But in
her final submissions, she chose a more general form, which implies the
participation of Albania in the laying of the mines, by whatever agency.
Albania replied to this British submission by her own conclusions Nos. 3 and 4,
in which she asked the Court to find that no complicity (collusion) on the part
of Albania had been established, without making mention of any particular
author. And so both Parties have asked
the Court to decide whether the participation (complicity or collusion) of
Albania in the minelaying has been proved, no matter by whom they were laid.
But the Court's Judgment
confines itself to Albano-Yugoslav collusion
(complicity). Consequently, it
has given no answer to the conclusions of the two Parties in regard to the
collusion (complicity) of Albania with some other author of the
minelaying. A reply by the Court on
this point was all the more called for because -apart from the fact that both
Parties had asked for it-the Court itself has stated in the Judgment that 'in
the light of the information now available,
the authors of the minelaying remain unknown'.
The fact that the Judgment keeps silence as to this complicity
(collusion) between Albania and the unknown author of the crime leads one to
conclude that the Court did not consider this complicity (collusion) to have
been proved. But, in view of the clear
and precise submissions of the two Parties, I consider that the Court was bound
to state, in express terms, that the complicity or participation of Albania in
the laying of the mines, by whatever agency effected, has not been established.
*118 IV.
The Albanian cognizance of the laying of the
mines.
1. The problem.
The third legal basis of
Albanian responsibility alleged by Great Britain is Albania's failure to notify
the existence of a minefield (since she could not remove the mines) or to warn
the four British ships on October 22nd, 1946, although at that time she was
aware of the existence of the minefield.
The juridical basis of
Albania's responsibility in this matter is not her actual cognizance, but her
failure to take action. Such a failure
naturally implies cognizance.
To establish Albania's responsibility on that
basis, it would have been necessary to prove:
(a) that Albania was
cognizant of the existence of the minefield;
(b) that it was possible
for Albania to have taken action (to notify the existence of the mines, or at
any rate to have warned the ships).
No direct evidence has
been produced that Albania knew about the minefield. Here again, we are in the sphere of indirect evidence,
indications and presumptions. The
conclusions of the Experts themselves are based on indications, presumptions
and conjectures.
The question therefore
arose whether it was possible, after examining the evidence, to become
convinced that it was really impossible for Albania to have been unaware of the
existence of the minefield, with the result that Albania's cognizance of the
matter was judicially established.
2. General observations
concerning indirect evidence (by presumptions and indications).
I would recall the wise
advice given to international judges by Sandiffer, Evidence before
International Tribunals, Chicago, 1939, page 3. He emphasizes the peculiar character of international procedure
and the grave consequences which may follow from a judicial error, and he
concludes: 'The vital interests of
States, directly concerning the welfare of thousands of people, may be
adversely affected by a decision based upon a misconception of facts.' And because
the illegal act of October 22nd, 1946, was in reality a criminal act, it is
useful to quote per analogiam another wise piece of advice, on this occasion
given by a British jurist.
*119 Taylor writes in his Treatise on the Law of
Evidence as administered in England and Ireland, 1920, page 115: 'But to affix on any person a stigma of
crime requires a higher degree of assurance, and juries will not be justified
in taking such a step, except on evidence which excludes from their mind all
reasonable doubts.' This advice is all
the more cogent in the case of States.
(a) Proofs by
presumptions.
The question arises
whether there is really, in international law, a presumptio juris applicable to
the present case. I find the reply in
two works on international law:
Sandiffer in his work quoted above, Evidence before International
Tribunals, Chicago, 1939, page 99, has quoted Ralston, who enumerates a few
presumptions which in his opinion are recognized by international courts, and
two of which are, I believe, applicable to the present case:
(i) 'The uniform presumption of the regularity and validity of all
acts of public officials.'
(ii) 'The legal presumption .... of the regularity and necessity
of governmental acts.'
Schwarzenberger, International Law, 1945,
page 396, writes: 'Still stronger is
the presumption that States are acting in accordance with international
law....'
The author bases this
opinion on the decision of the Permanent Court of International Justice in the
case known as 'German Interests in Upper Silesia', 1926.
In this decision the
Permanent Court was dealing with the question 'whether or not there had been an
abuse of right by Germany', and stated that 'such an abuse cannot be presumed'.
I consider therefore that
in international law there is a presumption in favour of every State,
corresponding very nearly to the presumption in favour of the innocence of
every individual in municipal law.
There is a presumptio juris that a State behaves in conformity with
international law. Therefore, a State
which alleges a violation of international law by another State must prove that
this presumption is not applicable in some special case; but *120 it is not possible to combat
a presumption of legal conduct by another presumption.
(b) Proofs by indication.
The Counsel of the two
Parties differed as to the degree of certainty attainable by a proof based on
indications. Great Britain alleged that
it suffices if the conclusion is beyond all reasonable doubt, though that would
not absolutely exclude a different
conclusion.
The Albanians contended
that the conclusion drawn from the indications must be the only possible one,
in view of the circumstances.
I think that one cause of
this disagreement was the confusion made by the Parties between conclusions and
hypotheses. A conclusion is not a
hypothesis. Obviously, the number of hypotheses will be greater than the number
of conclusions.
In my opinion, therefore,
it suffices if a conclusion drawn from the indications is the only rational
conclusion, having in view the concrete circumstances of the case. If two or more rational conclusions are
possible, we must choose between them according to the general principle of
law: in dubio pro reo.
In regard to the probative
value of indications, we must bear in mind:
(a) the danger of an indirect proof:
this danger arises because the conclusion is reached by reasoning, and
this, as experience teaches, is a frequent source of errors; (b) the nature of the indirect proof: this is well described by Taylor, who writes
on page 74 of his work, already quoted, A Treatise on the Law of Evidence as
administered in England and Ireland, 1920:
'They [the jury] must
decide, not whether these facts [indications] are consistent with the
prisoner's guilt, but whether they are inconsistent with any other rational
conclusion.'
Georges Vidal, in his Cours de Droit criminel
et de Science penitentiaire, 1935, discussing conclusions drawn from
indications (he calls them presumptions), writes:
'Juries and judges
should only accept presumptions with extreme prudence and with considerable
reserve in order to avoid judicial errors which are too easily made.'
After these preliminary
remarks, and with the reserve which is proper for a judge when considering
indirect evidence, I shall now examine the proofs of Albania's responsibility,
on the basis of cognizance.
*121 3. Examination of the proofs.
The conclusion reached in
the Judgment that the laying of the minefield could not have been accomplished
without the knowledge of the Albanian Government is based on:
(A) the conduct of
Albania both before and after the catastrophe of October 22nd, 1946;
(B) the facts concerning
the possibility of observing the minelaying from the Albanian coast.
As cognizance does not
suffice by itself to constitute a legal basis of responsibility, the judgment
has added a third conclusion concerning the time at which Albania became
cognizant of the minelaying.
ad A. The conduct of
Albania.
The Court considers it to have been clearly
established that Albania kept a very vigilant watch over the territorial waters
in the North Corfu Channel; but the Judgment is silent regarding another fact
which was also clearly established by the evidence of the Albanian witnesses,
namely, that the system of vigilance and that of the coastal defences was very
inadequate. The presence of a look-out
post at Denta Point was not established.
That proves the inadequacy of the Albanian system of vigilance in
regard, precisely, to the incident which is the subject of the proceedings.
The Judgment also omits to
say that the inadequacy of the vigilance was recognized by Great Britain. For the representative of Great Britain
admitted in his final address that the local authorities might have been
unaware of the minelaying.
The Judgment also refers
to the notes of the Albanian Government in which the latter expressed its
intention of keeping a jealous watch over its territorial waters. Those notes prove nothing except that the
Albanian Government was insisting on its right to regulate, and even to forbid,
foreign ships from entering Albanian territorial waters without permission from
the Albanian Government.
That Government was
convinced that it possessed that right, and therefore in its notes it insisted
upon its right. The government of any
State would have acted in the same way, and nothing can be deduced from such
conduct, which is even a part of the duty
that every government owes towards its own people. But even if the coastal guards had exercised strict vigilance,
that fact would not suffice to justify the conclusion that the ignorance of the
Albanian Government was a priori improbable.
The Judgment next refers
to the evidence of Captain Ali Shtino.
We read in the Judgment: 'The
Court also noted the reply of *122 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.''
The value which the
Judgment assigns to Captain Shtino's answer is not clearly brought out in that
quotation. A reader of the Judgment can
only guess that the Court has interpreted this answer as indicating a change in
an earlier order which might have embarrassed the minelayers, in other words,
that a counter-order had been given to the coastal guards with the object of
preventing interference with the minelaying.
But that interpretation is not justified. A perusal of Captain Shtino's evidence shows at once that this
part of his testimony refers to the incident on May 15th, 1946.
Captain Shtino was being
questioned as to the incident when the Albanian battery fired in the direction
of the British ships. In regard to that
incident, he stated that when he
temporarily took the place of the officer commanding the coast defences a few
days before October 22nd, 1946, that officer told him that the look-out post
should report to him any movements observed in the Channel, and that no action
was to be taken. It is evident from the
context that the witness was thinking of the gunfire incident on May 15th,
1946; what he meant was that an order
had been given not to take any action, so as to prevent a repetition of the
incident of May 15th, 1946.
As regards the telegrams
sent by Albania to the Secretary-General of the United Nations on November 13th
and 27th, 1946, the conclusions which the Judgment draws from these two
telegrams seem to be ill-founded. If we
confine ourselves to the evidence filed with the Court, we find that Albania
learned for the first time that a minefield had been discovered from the
British note of December 9th, 1946. But
in that note, Great Britain already accused Albania of having laid the mines or
of complicity in the minelaying.
Albania replied on December 21st, 1946.
She expressed her profound regret, stigmatizing the laying of the mines
as an inhuman act, but naturally she rebutted the accusation that it was she
who had laid the mines or caused them to be laid. It is entirely natural that
for Albania the first thing to do was to defend herself against a criminal
accusation. She protested to Great
Britain, and in my view that protest sufficed.
She could not protest to a
State unknown, so she protested to Great Britain, the country which had formulated the
accusation.
It seems that the Judgment
attributes great importance to the fact that Albania omitted to notify the
existence of the minefield after it had been discovered by the British on
November 13th, 1946. *123 The
reader might gain the impression that the failure to do this, after November
13th, 1946, was an additional indication of Albania's cognizance of the
minefield: that interpretation is not
justified. The following fact must be
taken into consideration: Great Britain
had sent a note to Albania on November 10th, 1946, informing the Albanian
Government that the sweep would be carried out on November 12th, 1946, and that
the operation had been unanimously recommended by the Central Mine Clearance
Board on November 1st.
The functions of this
agency, which had been created by the Great Powers under the Agreement of
November 22nd, 1945, are described in Annex 3 of the British Memorial. In paragraph 6 of that Annex one of the
functions of the central agency was described as follows:
(i) to promulgate reports
on experience gained in the course of operations.
There had thus been
created for this task a special bureau, the duties of which are set forth in
paragraphs 13 to 16 of Annex 3 of the British Memorial; from all these
provisions it is apparent that the responsibility for notifying minefields
discovered in the course of sweeps rested on the Central Board in London and on
its subordinate bodies. Hence we may
conclude that Albania, who was acquainted
with the functions of this central agency from the documents which she received
between October 1945 and October 1946 (see paragraph 10 of the British
Memorial), did not consider it to be her duty to notify the discovery of the
minefield, seeing that that was the duty of the Central Board in London. This omission cannot therefore be
interpreted as an additional indication of Albania's cognizance of the
minelaying.
Apart from the fact that
Albania only learned by the British note of December 9th, 1946, that a
minefield had been discovered on November 13th, 1946, the indications mentioned
in the Judgment in regard to Albania's conduct would be quite consistent with
Albania's ignorance of the minelaying.
But the Judgment keeps silence in regard to other indications, which
were established by the procedure, and which lead to an opposite conclusion,
that is to the conclusion that Albania was not cognizant of the minefield.
The Judgment omits to
mention that Albania gave her consent, in principle, to the sweep announced by
Great Britain in her note of November 10th, 1946, and that she proposed a mixed
commission to determine the area to be swept (Great Britain gave no answer to
this proposal), and finally that Great Britain herself has admitted that the
Albanian local authorities may not have known about the minelaying. Therefore, if the Judgment reaches the
conclusion that the conduct of Albania before and after the catastrophe is
evidence (of course, indirect) of Albania's cognizance, it does so by a line of
reasoning which is in contradiction with
the general rule *124 of law concerning the evaluation of
indications. I have in mind the rule
which I referred to above (p. 119, Taylor).
In my opinion, the
indications regarding Albania's conduct which are set forth in the Judgment in
no way prove that Albania was aware of the existence of the minefield. But even if, per inconcessum, it were
admitted that these indications justify that conclusion, it ought to be added
that they also justify an opposite conclusion.
In a case where several rational conclusions are possible, a choice must
be made between them in accordance with the general principle of law in dubio
pro reo. But the indications which the
Judgment has omitted to mention, and to which I have referred above, tilt the
balance in favour of the conclusion that Albania was not cognizant of the
existence of the minefield.
ad B. The possibility of
observation.
The second series of facts
mentioned in the Judgment as leading to the conclusion in favour of Albania's
cognizance relate to the possibility of observing the minelaying from the
Albanian coast. The Judgment begins by
mentioning three considerations which the Court had in view, and then goes on
to analyse the Experts' report.
(a) The Court's three
considerations:
(aa) The geographical
configuration of the Bay of Saranda and of the Channel prove, according to the Judgment, that the
laying of the mines could not have escaped the vigilance of the Albanian coast
defence commander. However, from a
geographical point of view, the best position for observing anything that happened
in the waters with which we are concerned in this case was Denta Point: it was off Denta Point that the mines had
been laid. But there was no look-out
post on Denta Point; that is admitted
by the Judgment. Consequently, in the
absence of any look-out at the point which is of chief geographical importance,
the geographical configuration does not justify the conclusion referred to
above.
(bb) The time available
for the minelaying operation was sufficient, according to the Judgment, for the
attention of the lookout posts at Cape Kiephali and San Giorgio Monastery to
have been drawn to it. That is sheer
conjecture. If the minelaying had been
effected under favourable conditions, it could perhaps have been observed, but
if it was effected by night, under unfavourable conditions (cloudy and rainy
weather, etc., as indicated in the Mediterranean Pilot for October 1946), it
would certainly not have been observed.
The hour at which the mines were laid was not established, and could not
be established, during the debates;
nothing is known about the weather conditions when the mines were laid,
and the conclusion of the Judgment on that point is based upon simple
conjectures.
*125 (cc) As the Judgment refers, in support of
its conclusion, to the distance from the
coast at which the minelaying ships must have passed, it must be borne in mind
that there was no observation post at Denta Point. Besides, even if the minelaying ships had been seen, it does not
follow that the operation itself would have been observed! A distinction must be drawn between the
passage of the minelaying ships and the minelaying operation.
(b) The Experts' opinion.
Lastly, the Court has
analyzed the report of the Experts in which it finds confirmation for the
conclusion that Albania was cognizant of the minelaying.
In their first report, the
Experts dealt with the visibility and the audibility of the minelaying. In their second report, they confined
themselves solely to the question of the visibility of the passage of the
minelaying ships and of the minelaying operation itself.
As regards the audibility
of the minelaying operation, the conclusion at which the Experts arrived in
their first report is subject to strict reservations. They said that in less
favourable circumstances it would nevertheless be impossible to hear the
operation, and they even added a sentence which is of great importance for the
whole question of observation: 'We are
not in possession of sufficient information as to the conditions when the mines
were laid to give a more definite statement.'
But even during their enquiry on the spot they were not able to obtain
any fuller information.
The Experts' enquiries
were therefore concentrated on the problem of visibility. In their first report their conclusion
regarding visibility lacked precision.
In their second report the Experts were more categorical. Their conclusion is quoted in the
Judgment. If one reads it carefully, it
is evident that the reply is only categorical in appearance. In reality, the reply of the Experts, in
spite of its categorical form, is just as conditional as that in the first
report. Their conclusions are based on
five facts, two of which-the existence of a look-out post at Denta Point and
the prevalence of normal weather conditions at the time of the minelaying-have
not been established. These two facts, or conditions, in conjunction with three
others, constitute the sole basis of the Experts' conclusions. If one of these conditions is not
established, the whole basis collapses.
The Judgment admits that the existence of a look-out post at Denta Point
has not been established. The weather
conditions have only been ascertained for October; in that month they were unfavourable. If the mines were laid before October-a point which the Court has
not succeeded in establishing-the conditions under which the mines were laid,
at an unknown time, are also unknown.
It follows that the conclusions of the *126 Experts in regard to
visibility do not afford any judicial evidence proving that it was impossible
for Albania to have been ignorant of the minelaying.
(c) The time at which
cognizance was acquired.
Even if we accept the
conclusion of the Judgment that the coastguards must necessarily have noticed the minelaying, that
is still not enough to establish Albania's responsibility. And so the Judgment-quite rightly-considers
the question of the time at which the Albanian authorities became cognizant of
the minelaying. It is, as I have said,
quite impossible to determine that time in any manner which could be called
probative, in a judicial sense. The
Court has based its conclusion concerning the time at which Albania became
cognizant of the minelaying upon a conjecture.
The Judgment accepts as
the last possible moment the night of October 21st- 22nd, 1946. In that case, as the Judgment admits, it
would have been impossible for Albania to notify the minefield to the shipping
of all States, but-still according to the Judgment-it would have been possible
to warn the British ships whose approach was reported to the coast defence
command about 1 p.m. on October 22nd.
We are therefore to suppose that the coast defence command was cognizant
of the minefield at 1 p.m. on October 22nd, 1946. The commander, who at that time was Captain Shtino, has deposed
before the Court that he knew nothing of any minefield in the Corfu Channel. The Judgment says nothing whatever about this
testimony, though it has not tried to show that he was unworthy of
credence. It simply assumes that the
coast defence command was cognizant of the minefield at that time, a simple
conjecture which is uncorroborated by any evidence.
4. Summary.
For the foregoing reasons, I am unable to
accept the conclusion of the Judgment that the laying of the minefield which
caused the explosions on October 22nd, 1946, could not have escaped the
knowledge of the Albanian Government.
I consider that that
conclusion, so far from being based on well-established evidence, is only
supported by presumptions and even by conjectures.
I have accordingly reached
the following conclusions:
(A) The Albanian Government's knowledge of the minelaying has not
been judicially established.
In support of this
conclusion, I invoke the following additional reasons:
(a) Great Britain
admitted, in Sir Frank Soskice's speech, that the local authorities might not
have known of the minelaying.
(b) If Albania had really
known of the presence of the minefield, she could have removed the mines; she had almost three *127 weeks, from
October 22nd to November 13th, to get rid of the traces of this crime of which,
according to Great Britain's allegation, she was cognizant.
(c) It is an established
fact that, in 1946, before the incident of October 22nd, Albania was desirous
of establishing diplomatic relations with Great Britain. Negotiations were proceeding. The incident on October 22nd, 1946,
naturally put an end to these efforts.
But I am convinced that if the Albanian Government had known about the
laying of the mines (the evident purpose of which
was to provoke an incident and so wreck the negotiations), it would have done
everything in its power to prevent the minelaying, or if that had been found
impossible, to notify it or at any rate to warn the ships.
(d) The conclusion that
Albania was cognizant of the minelaying is in reality a presumption of
fact. It is not sufficient to annul the
legal presumption of international law according to which States act in
conformity with international law.
(B) Even if one admitted the conclusion that Albania had known of
the minelaying, it would still be necessary to establish the facts determining
her duty to take action: in the first
place, the time at which Albania acquired this cognizance and, hence, the fact
that the coastal guards informed their superior officers, and through those
superior officers the Albanian Government, in sufficient time to enable that
Government to issue a notification, or for the superior officers to order the
removal of the mines, or to give warning to the British ships on October 22nd,
1946.
Those are facts which were
not discussed during the proceedings and have not been established.
V.
The rules of law.
In general, I agree with
the Judgment on the question of law.
But in view of the tendency shown in the opening address of British
Counsel to draw certain legal conclusions (which as a fact were rejected by the
Judgment) from the fact that the minefield was laid in Albanian teritorial
waters, I think it would perhaps be desirable to state in express terms in the
Judgment that the responsibility of a State assumes either dolus or culpa on
its part. On that point I would refer
to Oppenheim-Lauterpacht, The International Law, 1948, p. 311:
*128 'An act of a State injurious to another
State is nevertheless not an international delinquency if committed neither
wilfully and maliciously nor with culpable negligence.'
VI.
The competence of the Court to assess the amount of compensation.
My reply to this question
is as follows:
(a) We must keep strictly
to the terms of the Special Agreement, because that agreement constitutes the
petita of the Parties.
(b) In this Special
Agreement, the Parties have asked the Court to decide whether Albania is or is
not bound to pay compensation. The two
Parties did not ask the Court to assess the
amount of the compensation.
(c) The Parties have
submitted to the Court a request for a declaratory judgment. They did not ask the Court to condemn a
Party to make a certain payment. Their
request is analogous to a declaratory action in municipal law.
In consequence, I consider
that the Court does not possess this competence.
Second Part of the Special Agreement.
I.
Operations by the British fleet on October
22nd, 1946.
1. The right of passage of warships through straits.
The Judgment expresses the
opinion that the coastal State has not the right to prohibit innocent passage
through straits in peace time and that, consequently, owing to the exceptional
circumstances in the North Corfu Channel, Albania would have been justified in
regulating the passage of warships through the strait without, however,
prohibiting it or subjecting it to special permission.
I doubt whether this
argument is well founded. In any case,
in 1946 there was no definite rule on the subject. The practice of States was so varied that no proof of the
existence of such a rule was to be found.
Doctrine itself was completely
divided. Nothing was therefore
certain. Great Britain might put
forward good reasons to justify her position in law; but Albania also could invoke sufficient reasons to justify her
position, naturally apart from the argument contained in the Albanian General *129
Staff's communication of May 17th, 1946, concerning all foreign ships,
including merchant ships. At the time
of the incident of October 22nd, 1946, the situation as regards the law was
very confused on the subject of the right of passage. In such a case, I think that the general rule in dubio pro reo
must be applied by analogy.
2. The operations by the British fleet.
In my opinion, two
standards of judgment can be applied to the passage of the British fleet on
October 22nd: a subjective standard
(intention) and an objective standard (the methods used).
(a) Subjective standard.
As regards the subjective
standard, we have one important indication, the existence of an Order XCU for
the passage of the four British vessels on October 22nd, 1946. Great Britain refused to produce this Order
for security reasons. The Court is
entitled to draw conclusions from this refusal. An endeavour was made to give a natural explanation: the purpose of the Order was only to prevent
the incident of May 15th, 1946. But if
that was the only purpose of Order XCU, why conceal it? It was a quite legitimate purpose. There was
no reason for hiding from the Court a quite legitimate purpose. Therefore, in my opinion, this refusal is an
indication against Great Britain and might justify a presumption or a conclusion
that Great Britain had, on October 22nd, other intentions than merely a test of
her right of passage.
But this conclusion is
faced with the presumptio juris of international law mentioned on pages 120 and
121: presumption of the legality of a
State's conduct.
This is a strong
presumption; it cannot be countered by
a single indication like that of Great Britain's refusal to communicate Order
XCU to the Court.
Great Britain's refusal to
produce Order XCU gives rise to suspicions as to her intentions in regard to
the passage on October 22nd; but this
is only an indication, and no proof, and it cannot rebut the presumption that
Great Britain had quite legitimate intentions.
(b) Objective standard.
I admit that the number of
vessels was excessive. Great Britain
might make a test with one or two ships;
but four warships made the passage appear like a naval demonstration,
involving an element of intimidation and even of misuse of the right of
passage.
*130 3. Conclusions.
(a) In 1946, there was no
clear rule of customary international law concerning the right of passage for a
warship through straits. The jurisdical
situation was doubtful; each of the two
Parties could put forward good arguments in support
of his claim.
(b) I do not think it has
been judicially established that the passage of the four British vessels on
October 22nd, 1946, was offensive, from the subjective standpoint
(intention). It involved an element of
intimidation and of misuse of a right from the objective standpoint. It might appear to the Albanian authorities
and people as a demonstration of force.
But even if this be admitted, the passage on October 22nd was not of an
offensive character such as would amount to a violation of Albanian sovereignty,
in the absence of judicial proof of an offensive intention.
II.
Operation 'Retail', November 12th-13th, 1946.
I agree with the decision
in the Judgment. But I will add that,
in my opinion, Operation Retail was an intervention, if not in the political,
at least in the police or legal sense.
In reality, the British Navy substituted itself for the Albanian police
or judicial authorities in performing an act which was a quasi-judicial or
police enquiry in Albanian territorial waters- i.e., an act strictly prohibited
by international law.
I think further that the
Judgment should mention, amongst the arguments for its decision, the provisions of the United
Nations Charter, in particular, Article 2, paragraph 4, and Article 42.
The International Court's
task as the jurisdical instrument of the United Nations is more far-reaching
than that of a domestic court. A
national court is called upon strictly to apply the law, and nothing more. The cohesion of the national community is
provided for by other means. The
decisions of national courts have not the same importance for the cohesion of
the national community as international justice has for the cohesion of the international
community. The International Court's
task is therefore to help to strengthen the cohesion of the international
community. The instrument of cohesion
of the international community is the United Nations Charter. It is true international law, with its
source in the new requirements of international life and the jurisdical
conscience of the peoples. The
authority of the Judgment, and that of the Court as judicial organ of the *131
United Nations, would be strengthened by a reference to the provisions of the
Charter.
In referring to the
Charter, the Judgment would emphasize that the supreme task of the
International Court of Justice is:
That its jurisdiction
should contribute to the technical development of international law, and also
promote peaceful relations between the States of the world, and thus help to
maintain peace.
*132 ANNEX
1.
LIST OF DOCUMENTS SUBMITTED TO THE COURT.
I.-ANNEXES DEPOSITED BY THE GOVERNMENT OF THE
UNITED KINGDOM.
A.-During the written proceedings:
1. Admiralty Chart No.
206 showing the Corfu Strait.
2. Section of German
Mine Information Chart.
(This is a chart which
was captured by the Allies, showing the North Corfu Channel and the position of
mines laid by the Axis there; the
original chart has been filed with the Registry.)
3. International
Agreement between the Governments of the United Kingdom, France, U.S.S.R. and
the United States, setting up the Mine Clearance Boards and dated November
22nd, 1945.
4. Affidavit by
despatch clerk at the Admiralty proving despatch of Medri Charts to Albania
(August 20th, 1947).
5. Section of Medri
Index Chart showing North Corfu swept channel and the international highway established therein
together with Medri pamphlets for use with the Index Chart.
(Single copy of the
entire Chart and of the complete pamphlets numbered 5, 9 and 12 have been filed
with Registry.)
6. Diplomatic
correspondence between the Government of the United Kingdom and Albania
regarding the right of navigation in the Strait of Corfu.
7. Admiralty tracings
showing the North Corfu swept channel and the position and tracks of
H.M.S. Orion, Superb, Leander, Saumarez
and Mauritius, passing through the North Corfu Channel on May 15th, 1946, and
on October 22nd, 1946.
8. Photographs of
H.M.S. Saumarez (below water line) and Volage (bows blown off) taken shortly
after the explosion on October 22nd, 1946.
9. Admiralty tracing
showing position of H.M. ships at the time of the explosion.
10. Report on damage to
H.M.S. Saumarez (December 8th, 1946).
11. Report on damage to
H.M.S. Volage (November 30th, 1946).
12. List of sailors
killed, with statement of pensions, etc., payable to dependants.
13. List of sailors
injured, with statement of expenses, pensions, etc.
14. Statement of cost
of repairs to the Volage and cost of replacement of the Saumarez.
15. Minutes of Mine Clearance Boards.
16. Reports of
Capitaine Mestre (November 16th and 23rd, 1946).
(There were two reports,
both in French. The reason why there
were two reports was that Capitaine Mestre wished to make certain corrections
in his second report of certain statements which he had made in his first
report.)
17. Reports on
Operation Retail by Rear-Admiral Kinahan and Commander Whitford. (The minesweeping operation of November
13th, 1946.)
*133 18. Chart showing position in which mines
were found on November 13th, 1946.
19. Photographs of the
mines.
20. Report on mines
examined at Admiralty Mining Establishment, Leigh Park House, Hants.
21. Chart showing the
defences of Saranda.
22. Affidavit of
Skipper Bargellini regarding the incident of U.N.R.R.A. barges on October 29th,
1946 (December 31st, 1946).
23. Documents and
records of the Security Council, etc., relative to the dispute.
24. Third Interim
Report of the Central Mine Clearance Board in European Waters after the war
(October 1st, 1946-June 30th, 1947).
25. Mine Information
Chart No. 2711.
26. Two signals
relating to the sweeping in October 1944 of the Corfu Channel.
27. Extracts from
Hansard (Parliamentary Debates), containing Statements by the Secretary of
State for Foreign Affairs regarding Albania.
28. Telegram from Flag
Officer Commanding 15th Cruiser Squadron, describing the incident of May 15th,
1946.
29. Photostat copies of
extracts from Political Report of July 29th, 1945, portions of which appear in
Annex 11 of the Albanian Counter-Memorial.
30. Text of Admiral
Willis's statement of October 26th, 1946.
31. Photograph of
Saumarez omitted from Annex 8 of United Kingdom Memorial.
32. Extract from Third
Interim Report of Central Mine Clearance Board in European waters after the
war.
33. Affidavit by
Commanding Officer of Skipjack identifying mines brought to Malta with those
found at Corfu (September 5th, 1947).
34. Chartlet showing
areas swept on November 12th, 1946.
35. Minutes of the
Central Mine Clearance Board in European waters after the war (May 25th,
1945-May 19th, 1948).
36. Minutes of the
Mediterranean Zone Mine Clearance Board (November 5th, 1945-May 11th, 1948).
37. Extracts from the
Minutes of the First Meeting of the Mediterranean Zone Mine Clearance Board
(November 5th, 1945), and of the Fourth Meeting (Second Sitting-February 27th,
1946).
B.-After the closure of the written
proceedings.
(a) Before the hearing:
38. Affidavit sworn in
London on October 4th, 1948, by Karel Kovacic, former Lieutenant-Commander in
the Yugoslav Navy.
39. Chart annexed to
above affidavit, showing the route probably followed by the vessels in going
from Sibenik to Boka Kotorska and to Corfu Channel.
*134 39. bis.
Tracing made from sketch of Panikovac from the Yugoslav Hydrographic
Institute, November 20th, 1948 (filed by Albanian Government's Agent), showing
the position of M-minesweepers in Panikovac Cove.
40. Copy of a note from
the Ministry for Foreign Affairs to the British Embassy, Athens, August 13th,
1948.
41. Affidavit by
Commander Sworder (October 22nd, 1948) regarding minesweeping in the Corfu
Channel in October 1944, January and February, 1945.
42. Extract from
Admiralty Instructions on minesweeping in war time.
43. Chart showing
sectors swept in October 1944.
44. Affidavit by D. G.
Jacobs, First Lieutenant of BYMS 2009 of the 153rd Minesweeping Flotilla, in
October 1944 (October 22nd, 1948).
45. Affidavit by
Commander Sworder showing the manner in which Medri Charts were drawn up (October 22nd, 1948).
46. Log-books of the
Volage, Mauritius and Leander.
47. Affidavit by
Lieutenant Godsall, Officer of the Watch on board the Saumarez on October 22nd,
1946, from 14.00 hours to 14.53 hours (October 22nd, 1948).
48. Report of a Board
of Enquiry set up on the arrival of the Saumarez at Corfu (October 24th, 1946).
49. Chart prepared by
the Members of the above-mentioned Board of Enquiry, showing the route followed
by the Saumarez.
50. Affidavit by
Commander Paul, in command of the Volage on October 22nd, 1946 (October 22nd,
1948).
51. Track-chart of the
Volage prepared by Commander Paul.
52. Certified true copy
of the letter of the Commander-in-Chief, Mediterrancan, to the Admiralty of
August 15th, 1946, transmitting the programme for the autumn cruise of his
Fleet.
53. Photostat copy of
Report of Proceedings of Volage, by Commander Paul (October 23rd, 1946).
54. Photostat copy of
Report of Proceedings of Saumarez, by Captain Selby (October 23rd, 1946).
55. Photostat copy of
Report of Proceedings of Leander, by Captain Otway Ruthven (October 23rd,
1946).
56. Photostat copy of Report of
Proceedings of Ocean, by Captain John
(October 24th, 1946).
57. Certified true copy
of Report of Rear-Admiral Kinahan, Commanding First Cruiser Squadron in H.M.S.
Mauritius, on the explosions caused on board the Saumarez and Volage by mines
(October 23rd, 1946).
58. Original copy of a
German chart captured by the Allies at the German Admiralty, Berlin (Ionian Sea
and Gulf of Taranto, south-western coast of Greece).
59. Affidavit by
Commander Whitford, Senior Officer of the 5th Minesweeping Flotilla from March
to December, 1946, explaining the difference between mines recently laid and
those that have been long in the water (October 22nd, 1948).
*135 60. Photographs M 1, 2 and 3 of a German
mine that had been two years in the water, with a certificate by Colonel
Golemis.
61. Photographs M 4, 5,
6, 7 and 8 of a German mine that had been five years in the water, with a
certificate by Commander Littleboy.
62. Telegrams passing
between the Commander-in-Chief, Mediterranean, and the Admiralty, prior to the
incident of October 22nd, 1946, embodying the instructions of the Admiralty
regarding the passage of H.M. ships through the Corfu Channel.
63. Telegrams passing
between the Commander-in-Chief, Mediterranean, and the Admiralty, embodying the instructions of
the Admiralty regarding Operation Retail.
64. Affidavit by Professor J. E. Harris, Professor of Zoology in
the University of Bristol, concerning the state of the mines swept in the Corfu
Channel on November 13th, 1946 (October 27th, 1948).
65. Affidavit by Mr. N.
I. Hendey, of the Admiralty Central Metallurgical Laboratory, Emsworth, giving
the reasons for the absence of fouling on mines in the Black Sea (October 25th,
1948).
66. Affidavit by
Commander Moloney, certifying that no dumps of German mines had been left in
Greece (October 29th, 1948).
(b) At the hearing:
67. Photograph of
Panikovac Cove.
68. Copies of two
telegrams from the British Admiralty dated November 9th, 1948, relating to the
Mljet and Meljine.
69. Copy of two
telegrams from the Air Ministry, United Kingdom, dated November 8th, 1948, and
concerning weather conditions and the angle of the sun at Sibenik on October
16th, 17th and 18th, 1946.
70. Jane's Fighting
Ships 1946-1947.
71. Photographs of
mines found during the sweep on November 13th, 1946. (These photographs had been submitted to the Security Council in
1947 and were marked VI (b) and VI (c).)
72. Treaty of Friendship and Mutual
Assistance between Yugoslavia and Albania (July 9th, 1946.-The date did not
appear on the copy filed).
73. Economic Agreement
between Yugoslavia and Albania (November 27th, 1946.-The date did not appear on
the copy filed).
74. Marinkalender 1947.
75. School and College
Atlas (London: G. W. Bacon & Co.).
76. Leopold's
Wereldatlas (The Hague: H. P. Leopold).
77. Serial Map Service
Atlas (London, 1947).
78. The Citizen's Atlas
of the World (Edinburgh & London, 1944).
79. Rough copy of log
of the Mauritius.
80. Document showing
the differences between the entries in the log-book (fair copy) and the rough log of the Mauritius.
81. Three fragments of
the mine which struck Volage.
82. Extract from Report
dated May 29th, 1946, from Rear-Admiral Kinahan, addressed to the
Commander-in-Chief of the Mediterranean, *136 reporting the proceedings
of the squadron under his command for the period April 29th to May 25th, 1946
(paragraph 23, relating to the passage of the squadron through the Corfu
Channel on May 15th, 1946).
83. Warships of the
World, Victory Edition, U.S.A.
84. Two sketches made
by Commander Kovacic at the hearing on November 24th, 1948, morning, showing
one of the Yugoslav ships with the rails and minelaying
mechanism.
85. Photograph of
Panikovac Cove on which Commander Kovacic drew an arrow showing the entrance to
the tunnel used as a mine store (hearing on November 24th, 1948, morning).
86. Two plans of the
region of Sibenik on which Commander Kovacic had marked: (a) the course followed in the launch and
the place from which he could recognize the mines; (b) the jetty from which the photograph of Panikovac Cove was
probably taken (hearing on November 24th, 1948, morning).
87. Report of the 153rd
Minesweeping Flotilla (October 8th, 1944) on the sweeping of the Korcula and
Scedro Channels, with a tracing showing the minesweeping operations.
88. File relating to
mines laid by the Germans (German documents).
89. German files
relating to mine stocks.
90. Original of the
Report of Proceedings of the Leander, made by Captain Otway Ruthven (October
23rd, 1946) (a photocopy had already been filed), with signature certified by
Captain Selby.
91. Tracing showing
course followed by the Leander on October 22nd, 1946, dated October 23rd, 1946,
and attached to the Report of Captain Otway Ruthven (this tracing replaces the
track-chart made on December 26th, 1946, and filed as Annex 7 to the United
Kingdom Memorial).
92. Typewritten copy of the Report of the
Volage made on October 23rd, 1946, by Commander Paul (a photocopy had already
been filed), with certificate by Commander Paul.
93. Original of Report
sent by Rear-Admiral Kinahan on May 29th, 1946, to Commander-in-Chief, Mediterranean,
on proceedings of his Squadron from April 29th to May 25th, 1946, with
signature certified by Commander Whitford.
94. Sketch made by
Lieutenant-Commander Kovacic at the hearing on the morning of November 26th,
1948, showing the position of Mljet and Meljine as he saw them on the evening
of October 17th or 18th, 1946, about 18.30 hours.
95. Plan of environs of
Sibenik, on which Commander Kovacic marked the site of the house from which he
saw the Mljet and the Meljine on October 17th or 18th, 1946, about 18.30 hours
(hearing on morning of November 26th, 1948).
96. Sketch made by
Lieutenant-Commander Kovacic at the hearing in the afternoon of November 25th,
1948, showing the position of Mljet and Meljine in relation to the mouth of the
tunnel at Panikovac Cove, on October 17th or 18th, about 16.30 hours.
*137 97. Two sketches made by
Lieutenant-Commander Kovacic at the hearing in the afternoon of November 26th,
1948, showing the manoeuvre made by the Mljet and Meljine to facilitate the
loading of the mines, and the position of
the two vessels during the loading.
98. Sketch showing a
minesweeper with its cable cutting the mooring of a mine, and a mine already
swept (sketch made by Commander Sworder and shown to the Court at the hearing
in the morning of November 22nd, 1948).
99. Diagram showing
sweeps of moored mines, 100% safe (made by Commander Sworder and shown to the
Court at the hearing on the morning of November 22nd, 1948).
100. Photograph showing
Mauritius and Saumarez after the explosion (this photograph was submitted to
the Security Council in 1947, and was numbered II (a), A. 4).
101. Two extracts from
Yugoslav illustrated papers, showing two photographs of a minelayer with its
derrick.
102. Map of Sibenik,
from U.S. Army (scale 1/50,000).
103. Admiralty Chart
No. 1581: Approach to Sibenik harbour.
104. Air photograph
(No. 4025) of Sibenik and Panikovac Cove.
105. Page of an
illustrated paper, showing the view over the sea from a house situated near
Keric's house.
106. Tracing of
Panikovac Cove, made by Yugoslav Hydrographic Institute, November 20th, 1940
(original filed by Albania).
107. Telegram received
from Rome by United Kingdom Delegation, concerning weather reports published at
Sibenik on October 17th and 18th, 1946 (November
24th, 1948).
108. Reply by the
United Kingdom experts to questions put to the Mixed Committee of Experts by
Judge Ecer on November 30th, 1948: (1)
Was the light sufficient at 17.35 hours to enable Lieutenant-Commander Kovacic
to see the vessels moored in Panikovac Cove?
(2) If the light was sufficient, would the view have been interrupted by
the lie of the land?
109. Letter from
Commander Sworder to Rear-Admiral Moullec, dated December 8th, 1948, forwarding
a revision of the common reply to question 5 of the Questionnaire by the agents
submitted on November 26th, 1948, to the experts of the two Parties.
110. Affidavit by M.
Zivan Pavlov (December 10th, 1948), certifying that between October 23rd and
26th, 1946, in the Gulf of Kotor, he saw a Yugoslav minelayer of the Meljine
class, moving towards the fuel refilling points at Boka Kotorska (original in
Serb-Croat, with English translation).
111. Membership card of
the Yugoslav Seamen's and Port-workers' Union, bearing name of Zivan Pavlov (in
Serbo-Croat language, with English translation of pertinent passages).
112. Instructions for
rendering Safe Underwater Weapons-German Buoyant Mines-1943.
*138 113. Air photograph of the environs of
saranda, showing certain paths and roads (1943).
114. Map of Saranda District (1/50,000
Albania sheet 26-IV Saranda).
115. Amendments
submitted by the United Kingdom naval experts to the replies they had given to
questions by Judge Ecer.
116. Six copies of
photographs of H.M.S. Mauritius (photographs Nos. A 1, A 2, A 3 and A 4 are
additional copies of photographs appearing in Supplement 6 to Minutes of the
Security Council, and are bad reproductions).
II.-ANNEXES DEPOSITED BY THE ALBANIAN
GOVERNMENT.
A.-During the written proceedings:
1. Letter from the
Greek Representative to the Secretary-General of the United Nations (March
10th, 1947).
2. Declaration by
Captain Avdi Mati (October 4th, 1947).
3. Letter from the Head
of the United Kingdom Military Mission in Albania to the Albanian Army General
Staff (January 25th, 1946).
4. Minutes of the
Meeting of the Mediterranean Zone Mine Clearance Board, held on July 2nd, 1946.
5. Report on the
incident of May 15th, 1946.
6. Letter from the
Albanian Representative to the Secretary-General of the United Nations, April
12th, 1947.
7. Report on the incident of October 22nd,
1946.
8. Reuter's communique of October 26th, 1946.
9. Article 3 of the
Albanian-Yugoslav Maritime Arrangement of September 10th, 1946.
10. Report on the
occurrences on November 12th and 13th, 1946.
11. Report by General
Hodgson (July 29th, 1945) on Greek provocation.
12. Chart showing
passage of British war squadron on October 22nd, 1946.
13. Map of Albanian
coast; Saranda and environs.
14. Report of the
Commander of the Yugoslav Navy on German minefields.
15. List of cases of
vessels that have struck mines, published by Lloyds.
16. 'Aggressive acts of
the Greek monarcho-fascist Government against Albania.'
17. 'War provocation by
the Greek monarcho-fascist Government against Albania.'
18. Full text of the
Albanian-Yugoslav Maritime Arrangement of September 10th, 1946.
19. Message from
General Maitland Wilson, Allied Commander-in-Chief, Mediterranean, to
Colonel-General Enver Hoxha (November 12th, 1944).
20. Message from Mr.
Cordell Hull (November 28th, 1943).
21. Message from Mr.
Edward Stettinius (May 22nd, 1945).
*139 22. Declaration by Mr. Winston Churchill
(November 4th, 1943).
23. Declaration by Mr. Cordell Hull (undated).
24. Letter from General
Hodgson congratulating General Enver Hoxha on the general elections (December
4th, 1945).
25. Photocopies of
parts of Medri Charts, M.6502: No. 3,
December 17th, 1945; No. 8, May 6th,
1946; No. 12, August 26th, 1946,
showing the route through the North Corfu Channel on those dates. The map of December 17th, 1945, gives to the
route the number 18/54.
26. Telegram from
harbour-master of Saranda, October 22nd, 1946.
27. Letter from the
Albanian Army General Staff to the Foreign Ministry, Tirana, August 30th, 1948.
28. Summary of an
article in the 'Red Star', appearing in the Bashkimi newspaper, May 18th, 1947.
29. Letters from two Greek
sailors to the United Nations Commission of Enquiry in Greece (February 15th,
1947).
30. Report on the
possibility of secret minelaying.
31. Tracing of
track-chart of Mauritius, taken from British Chart Annex 7, and position of
mines according to British Chart, Annex 9.
B.-After the closure of the written
proceedings:
(a) Before the hearing:
32. Note from the Yugoslav Legation at the
Hague to the Agent for the Albanian Government, dated November 8th, 1948, and
forwarding a communique of the Yugoslav Government concerning
Lieutenant-Commander Kovacic's evidence.
33. Tracing of swept
channel and normal route for shipping through the middle of the North Corfu
Channel.
34. Tracing of swept
channel and of the North Corfu Channel Zone not deeper than 25 fathoms.
35. Tracing of
respective positions of German channel and swept channel.
36. Tracing of position
of the minefield and track of Mauritius, Leander, Superb and Orion.
37. Minutes of the
Security Council, First Year, Second Series, Supplement No. 4.
(b) At the hearing:
38. Report by M.
Jacques Chapelon, Professor of Analysis at the Ecole polytechnique, Paris,
concerning the passage of Mauritius through a minefield.
39. Extract from Order
No. 892 of the Yugoslav Ministry of National Defence, dated November 17th,
1945, concerning minesweepers M 1, M 2 and M 3 (in Serbo-Croat, with French
translation certified correct by Yugoslav Legation at The Hague).
40. Sworn statement, dated November 17th,
1948, relating to repair of ships of the M class and type in Sibenik dockyard,
between September 27th and November 9th, 1946 (in Serbo-Croat, with *140
French translation certified correct by Yugoslav Legation at The Hague).
41. Photocopy of a page
of the Repairs Register of Sibenik dockyard (copy, with French translation of
the entries concerning the M 1, M 2 and M 3 vessels, certified correct by
Yugoslav Legation at The Hague).
42. Calculation made by
Captain Ormanov of height of sun at Sibenik on October 18th, 1946, at 15.15
hours.
43. Sworn statement
concerning the officer Drago Blazevic, dated November 17th, 1948 (in
Serbo-Croat, with French translation certified correct by Yugoslav Legation at
The Hague).
44. Certificate
concerning movements of ships of the M-class and type in October 1946, dated
November 17th, 1948 (in Serbo-Croat, with French translation certified correct
by Yugoslav Legation at The Hague).
45. British Admiralty
Chart No. 1581: Approach to Sibenik
harbour.
46. Sketch of Panikovac
by Yugoslav Hydrographic Institute, dated November 20th, 1948.
47. Cadastral plan of
town of Sibenik.
48. Photographs Nos. I,
II and III of Panikovac, taken from Cipad quay, or near by.
49. Photographs Nos. IV and V, looking
towards Panikovac from the terrace on which Lieutenant-Commander Kovacic was.
50. Italian map of
Sibenik (No. 558).
51. Report of the
Yugoslav 'Commission' concerning the non-availability of the M 1, M 2 and M 3
(three original documents dated November 11th, 1946, with French translations
certified correct by Yugoslav Legation at The Hague).
52. Work dockets of
Sibenik dockyard for Order Nos. 920, 921 and 922, relating to ships M 1, M 2
and M 3 (original documents in Serbo-Croat, with French translations certified
correct by Yugoslav Legation at The Hague).
53. Work docket
concerning ship M 1, signed by Lieutenant-Commander Kovacic (original in
Serbo-Croat, with French translation certified correct by the Yugoslav Legation
at The Hague).
54. 'Work Orders' Nos.
920, 921 and 922, addressed to the Directorate of Sibenik Dockyard, dated
September 26th, 1946, and concerning repairs to be done to the boilers of the
ships M 1, M 2 and M 3 (three original documents in Serbo-Croat, with French
translations certified correct by Yugoslav Legation at The Hague).
55. Affidavit by the
Presidency of the Government of the People's Federal Republic of Yugoslavia, on
the subject of legal time in Yugoslavia (in Serbo-Croat, dated November 27th,
1948, with French translation certified correct
by Yugoslav Legation at The Hague).
56. Reply by the
experts of the Albanian Delegation (December 4th 1948) to questions put by
Judge Ecer to the Mixed Committee of Experts on November 30th, 1948: (1) Was there sufficient light *141
at 17.35 hours to enable Lieutenant-Commander Kovacic to see the vessels moored
in Panikovac Cove? (2) If the light was
sufficient, would the lie of the land have obstructed the view?
57. Nautical
instructions for the East Mediterranean (Imprimerie nationale, 1945).
58. Sketch showing part
of a vessel of the M-class that might have been seen from the coast at night
from an altitude of 15 feet, the vessel being:
(1) 550 metres from the shore;
(2) 1 1/2 miles from the shore (sketch made by Captain Ormanov and shown
to the Court at the hearing on the afternoon of December 8th, 1948).
59. Register of the
naval dockyard at Sibenik.
60. Map of 'Europe and
North Africa', sheet 4, published by the French National Geographical Institute
in 1941-showing shipping routes.
61. Four photographs of
the coast near Saranda.
62. Sketch showing
roughly the hills around Panikovac Cove towards Sibenik (sketch made by Rear-Admiral Moullec).
63. Observations by
Rear-Admiral Moullec on the Reports of Commander Sworder as to the position of the ships in
Panikovac Bay.
64. Original of Report
of Commander of First Infantry Regiment, dated May 15th, 1946.
65. Original of letter
of May 16th, 1946, addressed to Tirana.
66. Original of Captain
Ali Shtino's Report, dated October 23rd, 1946
(concerning events on October 22nd, 1946).
III.-ANNEXES DEPOSITED JOINTLY BY THE PARTIES.
A.-During the written proceedings:
1. Special Agreement
between Albania and the United Kingdom, dated March 25th, 1948.
B.-During the hearing:
2. Questionnaire
prepared by M. Pierre Cot and Sir Eric Beckett, and submitted to the experts of
the two Parties on November 26th, 1948:
height of the sun at Sibenik on October 17th and 18th, 1946.
3. Replies established
jointly by the Parties to above Questionnaire
(November 27th, 1948).
4. Two diagrams showing the moment when a
shadow would have fallen on the jetty where the mines were being loaded.
5. Sketch of the
environs of Sibenik showing nearest points from which the jetty would have been
visible during the journey of the motor-boat that Lieutenant-Commander Kovacic
was in. (Three possible routes are
given in the Questionnaire.)
6. Joint Note of United
Kingdom and Albanian experts on the questions put by Judge Ecer to the Mixed
Committee of Experts on November 30th, 1948: (1) Was there sufficient light at
17.35 hours to enable Lieutenant- Commander Kovacic to see the vessels moored
in Panikovac Cove? (2) If the light was
sufficient, would the lie of the land have obstructed the view?
*142 ANNEX
2.
EXPERTS' REPORT OF JANUARY 8th, 1949.
The Committee of Naval
Experts appointed by the International Court of Justice on December 17th, 1948,
have the honour to submit to the Court the following unanimous answers to the
questions put to them:
Question (1). You are
requested to examine the situation in the North Corfu Strait immediately before
October 22nd, 1946, from the point of view of
(a) the position of
the swept channel.
(1) (a) ANSWER:
The German track shown in
Annex 2 to the United Kingdom Memorial could not be the centre line of a
one-mile swept channel because the western boundary would in this case
intersect Minefield G 146 c.
When the Royal Navy
planned to sweep a channel through the North Corfu Strait in 1944, route 18/32
and 18/34 was established, which was, according to us, the only feasible way to
make a passage through Corfu Channel without doing unnecessary sweeping of
Minefield QBY539. We consider therefore
route 18/32 and 18/34 the quickest and safest way to open up a route through
the North Corfu Channel.
(b) the effectiveness of the mineclearance previously carried out.
(1) (b) ANSWER:
In order to decide whether
the sweeping operations which were carried out in October 1944 and January 1945
were effective, it is necessary to study the minesweeping reports. The latter, however, could not be
produced. But bearing in mind:
1st. That the Royal Navy had a great experience in mineclearing;
2nd. That the sweeping of a moored minefield is far easier than
sweeping a ground minefield;
3rd. That the sweeping of a moored minefield, if carried out in
the proper way, can be considered 100%
safe;
Note.-Speaking strictly,
a channel can only be declared safe at the time when it is cleared. One cannot guarantee that the channel in the
future will remain so. Some evil person
may lay mines-as in fact has been done in this case-and there is also the very
remote possibility of a mine which went to the bottom when laid, rising to
'correct' depth later on. *143
But if such eventualities were to be taken into account, it would mean that no
waters could be declared safe, and mined areas could never be used any more;
4th. That this channel was swept for troopships and supplies to
pass through for the Italian front,
we assume that the clearing was carried out with the greatest
possible care.
and (c) the risk of encountering floating mines in this channel
owing to the proximity of the old minefields, and to study the German documents
in order to obtain information from them concerning the types of mines laid in
those minefields.
