The Corfu Channel case () was the first public international law case heard before the International Court of Justice (ICJ) between 1947 and 1949, concerning state responsibility for damages at sea, as well as the doctrine of innocent passage. A contentious case, it was the first of any type heard by the ICJ after its establishment in 1945.
Following a series of encounters from May to November 1946 in the Corfu Channel between the United Kingdom and the People's Republic of Albania—one of which resulted in damage to two Royal Navy ships and significant loss of life—the United Kingdom brought suit in the ICJ seeking reparations. After an initial ruling on jurisdiction in 1948, the ICJ issued separate merits and compensation judgments in 1949. The Court awarded the United Kingdom £843,947. This amount remained unpaid for decades, and British efforts to see it paid led to another ICJ case to resolve competing Albanian and Italian claims to more than two tons of Nazi gold. In 1996, Albania and the United Kingdom settled the judgment along with Albania's outstanding claim to the gold.
Corfu Channel has had a lasting influence on the practice of international law, especially the law of the sea. The concept of innocent passage used by the Court was ultimately adopted in a number of important law of the sea conventions. The stance taken by the Court on use of force has been of importance in subsequent decisions, such as Nicaragua v. United States. Additionally, the case served to set a number of procedural trends followed in subsequent ICJ proceedings.
Corfu Channel incident
In 1946, during the Greek Civil War, a series of three encounters took place in the Corfu Channel, between Albania and the United Kingdom.
On 15 May, the cruisers and passed through the northern part of the Corfu Channel. Albanian shore batteries opened fire on the two ships, coming within of the squadron, but striking neither vessel. The United Kingdom lodged a formal protest, demanding an apology from Albania. Albania stated that the ships had violated Albanian territorial waters, and asserted that passage through the Corfu Channel required Albanian permission. On 2 August, the United Kingdom stated that Royal Navy ships would return any fire in the future.
On 22 October, a Royal Navy flotilla composed of cruisers and , and destroyers and , entered the Corfu Channel. The ships were at Action Stations, with orders to return fire if they were attacked. Their guns were not loaded, and were in a neutral position—trained fore and aft, rather than aimed at the shore. At 2:53 p.m., Saumarez struck a mine and was heavily damaged; thirty-six people aboard were killed. Volage took her in tow, only to strike another mine at 4:16 p.m.; eight people were killed. A total of forty-four people died and forty-two others were injured, and Saumarez was damaged beyond repair. Shore batteries in the vicinity were observed by the ships, but neither side took any action. At one point, a boat flying an Albanian ensign and a white flag approached Volage to ask what the ships were doing. Writing in 2014, maritime archaeologist James P. Delgado said of the incident:
On 12 and 13 November, the Royal Navy undertook a mine clearance operation in the Corfu Channel, Operation Retail, which took place in Albanian territorial waters without advance permission from that country. Subsequently, the Albanian government formally complained to the United Nations, describing the operation as an incursion into Albanian territorial waters.
On 9 December, the United Kingdom demanded reparations from Albania. Albania denied involvement in the laying of mines, blaming Greece. In January 1947, the United Kingdom attempted to involve the United Nations Security Council. The Soviet Union objected, but the Security Council heard the British complaint. A fact-finding committee consisting of Polish, Australian and Colombian representatives reached no conclusions despite ten meetings. A Soviet veto, supported by Poland, blocked a resolution that would have accused Albania of indirect responsibility for the minefield. The Security Council passed a resolution on 9 April 1947, with the Soviet Union and Poland abstaining, recommending that the United Kingdom and Albania resolve the dispute in the International Court of Justice. This recommendation was made pursuant to Article 36, paragraph 3 of the United Nations Charter. On 22 May, the United Kingdom brought suit against Albania. The ICJ, being permanently in session, was available to begin hearing the case immediately. Despite having a long backlog of matters for consideration, such as a request for an advisory opinion on Article 4 of the United Nations Charter, the Corfu Channel case was considered first.
Looking back on this point in the incident in 1966, Leslie Gardiner wrote that one might have expected the incident to be all but resolved by this point. That after the "awkward tussle before the Security Council", the proceedings before the ICJ would be "for a mere formal pronouncement of guilt or innocence, in an atmosphere of judicial calm, undisturbed by political considerations, uncorrupted by nationalistic and ideological threats and sulks".
Case history The United Kingdom submitted its application to the ICJ on 22 May 1947. The submission was made without any prior negotiation with Albania to reach a special agreement. The jurisdiction of the ICJ over the matter was claimed under Article 36, Paragraph 1 of the ICJ Statute. The United Kingdom was initially represented by then-attorney general Hartley Shawcross, who had been chief prosecutor for the United Kingdom at the Nuremberg trials. Eric Beckett, legal counsel for the Foreign Office, was also a major member of the legal team, while additional support came from Hersch Lauterpacht, Humphrey Waldock, Richard Wilberforce, J. Mervyn Jones and M. E. Reed.
Albania submitted a letter to the Court on 2 July, which partially accepted the Security Council's recommendations. The lead counsel for Albania was Pierre Cot, then a Radical deputy in the French National Assembly. In late July, the president of the Court issued an order setting the deadlines for each party's submission of memorials. While the United Kingdom adhered to this deadline, Albania instead filed an objection to the application.
Preliminary objection
In the objection filed on 9 December, Albania argued that a special agreement was the only valid way that the case could be brought. The objection stated that when at least one party was a state that was not otherwise bound to submit to the Court's jurisdiction, proceedings could only be instituted by special agreement. Albania cited Articles 26(1) and 40(1) of the ICJ Statute in its support, and stated that no such agreement had been reached. In contesting the claims of the UK, the Albanian objection stated that the Security Council resolution was not itself enough to compel Albania to accept the jurisdiction of the Court. It also said that Albania's acceptance of the obligations of a UN member state did not constitute express acceptance of jurisdiction under the ICJ Statute. After the initial statements, Shawcross was replaced as the representative of the UK by then-solicitor general Frank Soskice.
The ICJ delivered its judgment on the objection on 25 March 1948, voting fifteen-to-one, with Igor Daxner—Albania's designated ad hoc judge—being the sole dissenter. The majority held that Albania had voluntarily submitted to the jurisdiction of the International Court. Specifically, two successive pieces of correspondence were held to have established Albania's informal submission to the Court's jurisdiction: the British transmission of the application to Albania, followed by the Albanian letter to the Court. These documents established jurisdiction ratione personae and ratione materiae. An important factor in this decision was the fact that the Albanian letter had not been produced by Albania's Agent, but by the Deputy Minister of Foreign Affairs. In a separate opinion, while concurring with the majority that Albania had voluntarily submitted to the Court's jurisdiction, Judges Basdevant, Álvarez, Winiarski, Zoričić, de Visscher, Badawi, and Krylov argued that the Security Council's Article 36 recommendation did not place the case within the compulsory jurisdiction of the Court.
Another issue the Court addressed was the difference between the rules governing the institution of proceedings and jurisdiction. Albania's objection assumed that proceedings could only be instituted where compulsory jurisdiction existed or where a special agreement had been reached. In essence, to institute proceedings the party applying to the Court needed only to plead as far as possible the basis of jurisdiction, and not to establish it absolutely.
After the judgement, the parties submitted a special agreement in open court certifying two questions: Whether Albania was responsible for the incidents, and whether the United Kingdom violated Albanian sovereignty. The Court accepted the special agreement as the basis for all further proceedings in the case on 26 March. Additionally, the parties requested that the Court continue the consecutive—as opposed to simultaneous—pleading format. The Court agreed to this.
Following the decay of relations between Albania and Yugoslavia in 1948, the Yugoslavian members of Cot's legal team were replaced by French barristers Joseph Nordmann, Marc Jacquier and Paul Villard. These three were respected members of the French bar and affiliated with the French Communist Party. Nordmann had also been involved in the French prosecution team during the Nuremberg trials.
Merits case
The merits phase began on 9 November 1948. The written pleadings phase has been described as concise by modern standards. The United Kingdom filed some 87 pages of pleadings, while Albania filed 74 pages. The oral proceedings were much more extensive, covering over one thousand pages.
At one point, Yugoslavia desired to submit evidence, but without intervening in the case. This was in response to the British argument that Yugoslavia and Albania had worked together in mining the Corfu Channel, and the presentation of evidence from Karel Kovacic, a former officer of the Yugoslav Navy. On 8 November 1948, Yugoslavia transmitted a communiqué to the Court arguing against Kovacic's credibility and denying any complicity in the mining. Yugoslavia also passed documentary evidence to Albania, which the Agent for Albania filed; while these were not admitted as evidence, an agreement with the United Kingdom permitted them to be used to examine a witness.