(State responsibility- modes of reparation-use of circumstantial evidence-right of innocent
passage- passage of warships through territorial waters-self help)
By the first part of the Special Agreement, the following question is submitted to the
Court:
“(1) 1s 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 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.
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, 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.
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.
In the light of the information now available to the Court, the authors of the mine laying
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.
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It is clear that knowledge of the mine laying 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 mine laying 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 mine laying from the Albanian coast.
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
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.
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
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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 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 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 mine laying, desired the
circumstances of the operation to remain secret.
2. As regards the possibility of observing mine laying from the Albanian coast, the Court
regards the following facts, relating to the technical conditions of a secret mine laying 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 mine laying 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
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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.
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 in the Experts’
Report: (1) that in the case of mine laying from the North towards the South, the minelayers
would have been seen from Cape Kiephali ; (2) in the case of mine laying 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. The obligations incumbent upon the Albanian authorities consisted in notifying, for
the benefit of shipping in general, the existence of a minefield in Albanian territorial waters
and in warning the approaching British warships of the imminent danger to which the
minefield exposed them. Such obligations are based, not on the Hague Convention of 1907,
No. VTII, which is applicable in time of war, but on certain general and well-recognized
principles, namely: elementary considerations of humanity, even more exacting in peace than
in war; the principle of the freedom of maritime communication; and every State’s obligation
not to allow knowingly its territory to be used for acts contrary to the rights of other States.
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 mine laying,
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 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
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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 £87 5,000.
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.
As has been said above, the Security Council, in its Resolution of April 9th, 1947,
undoubtedly intended that the whole dispute should be decided by the Court. If, however, the
Court should limit itself to saying that there is a duty to pay compensation without deciding
what amount of compensation is due, the dispute would not be finally decided. An important
part of it would remain unsettled. As both Parties have repeatedly declared that they accept
the Resolution of the Security Council, such a result would not conform with their
declarations. It would not give full effect to the Resolution, but would leave open the
possibility of a further dispute.
For the foregoing reasons, the Court has arrived at the conclusion that it has jurisdiction
to assess the amount of the compensation. This cannot, however, be done in the present
Judgment. The Albanian Government has not yet stated which items, if any, of the various
sums claimed it contests, and the United Kingdom Government has not submitted its evidence
with regard to them.
The Court therefore considers that further proceedings on this subject are necessary; the
order and time-limits of these proceedings will be fixed by the Order of this date.
In the second part of the Special Agreement, the following question is submitted to the
Court :
“(2) Has the United Kingdom under international law violated the sovereignty of the
Albanian People’s Republic by reason of the acts of the Royal Navy in Albanian waters on the
22nd October and on the 12th and 13th November 1946 and is there any duty to give
satisfaction?”
The Court will first consider whether the sovereignty of Albania was violated by reason
of the acts of the British Navy in Albanian waters on October 22nd, 1946.
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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 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.
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
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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 the Strait without having obtained the previous authorization of the
Albanian Government.
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 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.
In the above-mentioned telegram of October 26th, the Commander- 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, he 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.
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.
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.
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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 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
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 Court does not consider this argument convincing.
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 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.
