Corfu Channel

The International Court of Justice, with respect to the case of United Kingdom of Great
Britain and Northern Ireland v. People's Republic of Albania,1 or otherwise known as the
Corfu Channel Case contains many inconsistencies which were not considered while
delivering the judgment.

In both national criminal legislation and in international law, circumstantial evidence are
essentially the facts which though do not provide immediate proof of the charge but makes it
probable by way of reasoning with other evidences.2 However, there exists risk of making
errors or letting imagination fill the gaps in the evidence. This method of evidence, which
seeks or pretends to arrive at certainty, most often attains only a high degree of probability.
The Corfu Channel case ruled in favour of The United Kingdom on the basis of such
circumstantial evidences.

Firstly, there is no knowledge on the side of Albania. In finding Albania responsible in this
case, the Court considered the argument of the UK that it would not have been possible to lay
the mines without the knowledge of the Albanian Government.3 Hence, Albania was held
accountable as it did not give any prior notice to the British about the existence of the
minefield nor did it warn them when their warships had approached the Corfu Strait.
However, this conclusion is flawed due to the same reasoning that the Court had given by not
admitting collusion between the two countries, Yugoslavia and Albania. As this is a serious
charge against a State, the Court was right in pointing out that it requires a degree of certainty
but unfortunately that has not been reached in the Corfu Channel case.

When the Court’s Experts reached the spot, they stated that the mining operations would have
been seen from the Denta Point if there was a watch kept over the territorial waters. 4 But, by
taking a look at the evidence via three testimonies of Albanian witnesses, it is evident how
insufficient the evidence was. There was no post at Denta Point during the night before the
incident and hence there was nobody who could have seen the mining operations being
conducted on that night. So, this eliminates the proof of local authorities being aware of the

1
ICJ Rep 244, ICGJ 201 (ICJ 1949).
2
DELALIĆ et al. (Čelebići) (IT-96-21-A)
3
Wright, Q. (1949) ‘The Corfu Channel Case’, American Journal of International Law, 43(3), pp. 491–494.
doi:https://doi.org/10.2307/2193642.
4
Supra Note 1.
mines. Additionally, it is difficult to estimate how they would have been able to inform the
Government in time and stop the British warships from approaching.

Although, the Albanian Government knew that the minelaying had been done during the
night of October 21st-22nd with Yugoslavian material,5 there is no suggestion by the Court that
this particular mine operation was conducted in collaboration with another party leaving no
room for the hypothesis of collusion.

Therefore, if the Court deems that there is no proof over the fact that the minefield was laid
down by two Yugoslavian vessels, then it would also be difficult to admit that Albania had
knowledge of the mines laid by an unknown party. In that sense, holding Albania responsible
on the basis of abstract or immaterial knowledge would mean that this argument is derived
from the presumption that Albania is the territorial power and has sovereignty over the place
where the act had occurred. It is also impertinent to note that the United Kingdom’s counsel
themselves accepted the fact that if Albania had no knowledge of the minefield then they
cannot be held responsible.6

Secondly, the day when the mines were laid is not proven by any evidence.7 The UK claims
that it was around October 22nd but there is no certainty regarding this argument and hence it
could have also happened on any other day between May 15th and October 22.nd

Thirdly, the Court agrees on the point that the mines would have been laid with the
connivance of the Albanian Government, and stated that, “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 Governnent to the
Yugoslav Government for assistance, or of acquiescence by the Albanian authorities in the
laying of the mines.”8 However, reiterating on the previous argument with regard to
Collusion, connivance is not judicially proven by the Court.

Fourthly, the rule of Non Ultra Petita cannot be applied in this matter. This rule was used to
justify the amount claimed by the United Kingdom from the Albanian Government.9 While
determining the replacement value of the UK warships, the Court should consider the
5
Hector A. Munro, The Case of the Corfu Minefield, 10 MOD. L. REV. 363 (1947).
6
The Corfu Channel Case (Merits), International Court of Justice, Judgment of 9 April 1949, 46 Int'l L. Stud.
Ser. US Naval War Col. 108 (1948-1949).
7
Supra Note 1.
8
Ibid.
9
Ibid.
moment of the unlawful act or the moment of award of compensation and this rule cannot be
applied with this particular problem. The Court must decide on the grounds of law and not
mathematics and on what basis it is to be juridically adopted, not with respect to the rule.
Incase the figure is higher than the sum that is being claimed then, the Court has to limit
accordingly with the rule.