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.
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,
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
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,
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.
composed as above,
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;
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:
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
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:
'(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.
(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.
*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:
(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.
* * *
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,
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 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.
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.
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.
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.
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.
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;
(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.
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.
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.
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.
*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.
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.
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.
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.
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.'
*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
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
(Signed) B. WINIARSKI.
*58 DISSENTING OPINION BY JUDGE BADAWI PASHA.
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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
(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.'
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.'
'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.
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.
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.
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.'
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.
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.
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.
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).
(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.
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.
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).
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).
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.
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).)
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.
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).
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).
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).
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.
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).
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.
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).
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).
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
(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;
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.
(1) (c) ANSWER:
The presence of moored Italian minefields off Corfu explains the possibility of floating mines in this area. We cannot see, however, that the possible presence of floating mines could be connected with the mining of H.M.S. Saumarez and H.M.S. Volage, as the nature of the damage sustained by the above ships excludes the faintest possibility of its cause being a floating mine.
To our knowledge, it has not been definitely proved that more than one single ship [FN1], steaming on a straight course (as was the case with Saumarez and Volage), has been damaged by a floating mine, although thousands have been afloat during the two great wars.
Admittedly, there are ten more cases of ships having been struck by alleged floating mines; but these cases have not been proved.
Apart from other obvious reasons, such as the very minute space of sea occupied by a mine, the ease with which it is seen in daylight and its normally harmless condition, there is the fact that the bow wave brushes the mine clear of the ship.
Extensive practical tests have proved that it is impossible to ram a floating mine, however hard one tries.
Whatever the possibility may be of two mines from the old German minefield floating about, it is, as stated above, of no interest in this case, as the damage done to the two ships could not possibly be caused by floating mines.
A close study of the German documents shows: