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Corfu Channel Case (UK vs Alabania)

1948 ICJ Rep

A series of three encounters took place in the Corfu Channel, between Albania and the United Kingdom.
The incidents started on 15 May 1946 when two Royal Navy ships, HMS Orion and HMS Superb, crossed the Corfu
Channel following a prior inspection and clearing of the strait. While crossing they came under fire from
fortifications situated on the Albanian coast. Although the ships suffered no material damage and no human
casualties occurred, Britain issued a formal demand for "an immediate and public apology from the Albanian
Government". Such apology was not forthcoming, however, and the Albanian Government claimed that the British
ships had trespassed into Albanian territorial waters.
The second incident was on 22 October 1946, a Royal Navy flotilla composed of the cruisers HMS Mauritius and
HMS Leander, and the destroyers HMS Saumarez and HMS Volage, was ordered northward through the Corfu
Channel with the express orders to test the Albanian reaction to their right of innocent passage. The crews were
instructed to respond if attacked. They were passing close to the Albanian coast in what they considered to be a
mine-free zone with Mauritius leading and Saumarez following closely. Leander was about one and two-thirds of a
nautical mile or three kilometres away accompanied by Volage. Near the bay of Saranda, the destroyer Saumarez
struck a mine and was heavily damaged. The destroyer Volage was ordered to tow the Saumarez south to Corfu
harbour. While towing, Volage struck a mine also and sustained heavy damage. Both ships' bows were completely
blown off and adverse weather conditions in the straits made the towing effort exceedingly difficult with both ships
sailing stern-first, but after twelve hours of effort both ships managed to reach the Corfu harbour. Forty-four men
died and forty-two were injured in the incident. The Saumarez was damaged beyond repair while the damage to
Volage was repairable. The Albanian coastal batteries did not fire during this incident and an Albanian Navy vessel
approached the scene flying the Albanian flag and a white flag. Since Albania had no appropriate vessels at that
time, the mines were probably laid by Yugoslavian minelayers Mljet and Meljine on Albanian request.
The third and final incident occurred when the Royal Navy carried out an additional mine sweeping operation in the
Corfu channel, codenamed Operation Retail. Under the direction of the Allied Commander-in-Chief Mediterranean
the mine-sweeping operation took place within Albanian territorial waters, but without authorisation by the Albanian
government, and had the additional purpose of using the mines as corpora delicti to prove that the British were
acting in self defence by attempting to clear hazards to navigation.
Twenty-two contact mines were discovered and cut from their undersea moorings. The placement of the mines was
such that the minefield was deemed to have been deliberately designed and not simply a random aggregation of
isolated mines. It was then discovered that the mines were of German origin but they were free of rust and marine
growth. They were also freshly painted and their mooring cables were recently lubricated. It was concluded that the
minefield was laid shortly before the incident involving Saumarez and Volage.
Following the third incident, Albania, under prime minister Enver Hoxha, dispatched a telegram to the United
Nations complaining about an incursion by the Royal Navy into Albanian coastal waters.
The Government of the United Kingdom filed an Application instituting proceedings against the Government of the
People's Republic of Albania seeking a decision to the effect that the Albanian Government was internationally
responsible for the consequences of the incident and must make reparation or pay compensation. Albania, for its
part, had submitted a counter-claim against the United Kingdom for having violated Albanian territorial waters.
Issue: Whether or not the action of the British Navy constituted a violation of Albanian sovereignty

Held: Yes.
The Court rejected the self-defence argument advanced by the United Kingdom and found that the mine-clearing
operations undertaken by the British during Operation Retail, in the absence of prior Albanian consent, were illegal.
"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 organisation, 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 inter-national 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 recognises 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.
The ICJ issued its merits judgment, ruling partly in favour of Albania and partly in favour of the United Kingdom.
The court awarded the British the sum of 843,947 or US$2,009,437 having found that, irrespectively of who laid
the mines, the Albanians ought to have observed any such action, since the minefield was so close to their coast, and
thus they failed to inform the British of the danger.

Right of Passage
The sovereignty of the coastal state over its territorial sea and airspace above it as well as the seabed under is the
same as its sovereignty over its land territory. However, the sea is subject to the right of innocent passage by other
states. Coastal states have the unilateral right to verify the innocent passage and it may take necessary steps to
prevent passage that it determined to be not innocent. The rule on innocent passage is also applicable to straits.
it is in the opinion of the Court, generally recognized and in accordance with international custom that states n 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