Corfu Channel Case (United Kingdom v. Albania) (1949)

The Court's first contentious judgment, and it decided four separate things that are each examinable.

1. State responsibility for omission, on the basis of knowledge, with the famous formulation of a State's obligation not to allow knowingly its territory to be used contrary to the rights of other States.
2. The use of circumstantial evidence against a State exercising exclusive territorial control.
3. Innocent passage of warships through international straits in time of peace.
4. The rejection of self-help, and a declaration as satisfaction.

On 22 October 1946 a squadron of British warships, the cruisers Mauritius and Leander and the destroyers Saumarez and Volage, proceeded north through the North Corfu Strait along a channel previously swept for mines. Outside the Bay of Saranda Saumarez struck a mine and was heavily damaged. Volage, ordered to give assistance and take her in tow, also struck a mine. Lives were lost.

The Channel had been swept by the British Navy in October 1944 with no mines found, and a safe route announced in November 1944; it was check-swept in January and February 1945 with negative results. On 13 November 1946 the British swept the Channel and cut twenty-two moored mines.

Before that sweep the United Kingdom had announced its intention to sweep; Albania replied that it would not consent unless the operation took place outside Albanian territorial waters, and later protested against a unilateral decision, proposing a Mixed Commission to define the channel first. Operation Retail was carried out on 12 and 13 November within Albanian territorial waters, under the protection of a covering force including an aircraft carrier and cruisers.

1. Is Albania responsible for the explosions and the resulting damage and loss of life, and does a duty to pay compensation arise?
2. Did the United Kingdom violate Albanian sovereignty by the passage of 22 October, or by Operation Retail on 12 and 13 November?

1. Albania is responsible and owes compensation; the Court retained jurisdiction to assess the amount.
2. The passage of 22 October did not violate Albanian sovereignty. Operation Retail did, and the declaration to that effect was in itself appropriate satisfaction.

Control is not knowledge. The Court first shut off the easy route. 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."

But control changes the methods of proof. Because of exclusive territorial control the victim State is often unable to furnish direct proof, and "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 is of special weight "when it is based on a series of facts linked together and leading logically to a single conclusion", and inferences must leave no room for reasonable doubt.

Knowledge, proved circumstantially. The Court relied on the report of experts who had examined the locality. The nearest mine lay only five hundred metres from the coast, and the minelayers must have passed within about five hundred metres of it. On the Albanian Government's own declarations there were look-out posts at Cape Kiephali and St George's Monastery, and the experts concluded that minelayers working from the north would have been seen from Cape Kiephali, and those working from the south from both posts. From all the facts the Court drew 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 that knowledge triggers. They were to notify the existence of a minefield in Albanian territorial waters for the benefit of shipping in general, and to warn the approaching British warships of the imminent danger. The basis is the sentence every answer on responsibility should carry: such obligations are based, not on the Hague Convention of 1907 No. VIII which applies in time of war, "but on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime communication; and every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States."

The omission. Albania neither notified nor warned. The Court dealt with the timing argument squarely. Even if the mines were laid at the last possible moment, general notification to the shipping of all States might have been difficult or impossible, but that would certainly not have prevented the Albanian authorities from immediately warning ships near the danger zone. When the British warships were reported at about 13.00 hours as approaching Cape Long, it was perfectly possible to use the interval of almost two hours before the explosion at 14.53 or 14.55 hours. "In fact, nothing was attempted by the Albanian authorities to prevent the disaster. These grave omissions involve the international responsibility of Albania."

Compensation. Since the Security Council had intended the whole dispute to be decided, a ruling that compensation was due without fixing the amount would leave an important part unsettled. The Court held it had jurisdiction to assess the amount and ordered further proceedings.

Is the Strait an international highway? The test is not that the strait is a necessary route between two parts of the high seas; an alternative passage may qualify. What counts is its geographical situation connecting parts of the high seas and the fact of its being used for international navigation. The North Corfu Channel had been a useful route for international maritime traffic, formed a frontier between Albania and Greece, and mattered to Greece because of the traffic to and from Corfu. The Court concluded that it "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."

How much may the coastal State do? The limit is precise. Given the exceptional circumstances, the absence of normal relations, Greek territorial claims and the danger of incursions, Albania "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." Regulation yes; prohibition or licensing no. That distinction survives in Articles 21 and 24 of the 1982 Convention.

Was the manner of passage innocent? The ships passed at action stations, ready to retaliate if fired upon, after a battery had fired on British ships in May. The Court held the precaution not unreasonable in itself, and, weighing all the circumstances, was unable to characterise the measures as a violation of Albania's sovereignty. The mission was designed to affirm a right which had been unjustly denied, and the United Kingdom was not bound to abstain from exercising a right of passage that Albania had illegally denied.

The United Kingdom conceded a great deal: that the operation lacked the consent of the international mine clearance organisations, that it could not be justified as innocent passage, and that in principle international law does not allow a State to assemble a large number of warships in another State's territorial waters and sweep for mines there. Its only plea was extreme urgency. "The Court does not consider this argument convincing."

Then the sentence that closes the door on self-help: "Between independent States, respect for territorial sovereignty is an essential foundation of international relations." The Court acknowledged extenuating circumstances in Albania's complete failure to carry out its duties after the explosions and in the dilatory nature of its notes. But "to ensure respect for international law, of which it is the organ, the Court must declare that the action of the British Navy constituted 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 responsibility holding is about omission, not about laying the mines. The Court never found that Albania laid them. Liability rested on knowledge plus failure to warn.
• The three principles supporting the duty are the examinable list: elementary considerations of humanity, freedom of maritime communication, and the obligation not to allow knowingly one's territory to be used contrary to the rights of other States. The third became the foundation of transboundary environmental obligations.
• On evidence, keep the two halves together: territorial control does not by itself raise a presumption of knowledge or shift the burden of proof, but it does entitle the victim State to a more liberal recourse to inferences of fact and circumstantial evidence, which must leave no room for reasonable doubt.
• On remedies, this is the case for satisfaction by declaration, which is now Article 37 of the Articles on State Responsibility, and a direct answer to any question about self-help and countermeasures.