HI5015 Legal Aspects of International Trade and Enterprise

The General principles of International law is one of the sources of law which is available to the international and national laws. These general principles are used and applied to resolve the conflicts amid the states.  it is submitted that these General principles plays such an integral role in the most of the legal systems of the country that even if these principles are not found in the customary laws or not made part of the international agreement still these General principles are followed as add-on rules of International laws wherever required and is highlighted in Restatement of the Law (Third), the Foreign Relations of the United States. the international customs and conventions are the two main sources of law, however as per Article 38 (1)(c) of the SICJ (Statute of the International Court of Justice) an authority is provided to the courts wherein they can apply these General principles along with the above-mentioned source of law. Thus, the General Principles of law are considered as the backbone for the international associations and also put together the standard manner in which way a community works.

The main issue that arose in Corfu Channel was that civil liability arose against Albanian as while striking mines of the Corfu Channel it has destroyed two British Naval Vessels. The Corfu Channel case was the novel Public International Case that was taken heed by the International Court of Justice amid 1947-1949. The main concern was the responsibility of the state for the damages incurred at sea and the doctrine of innocent passage. It was one of the argumentative case that was heard by the (ICJ) International Court of justice. (Academike, 2014)

In order to understand the arguments that are raised by the parties in the most famous Corfu case and the decision of the court, it is first important to factually analyse the case.

Brief facts of the case

In 1946, on 15^th May, the Corfu Channel was within the jurisdiction of the Albanian Government and at that time two British warship passed through the Channel, however, no approval from taken from the government of Albanian and the government shot the two British ships down. On 22^nd October 1946,  a troop of British warships including 2 destroyers and 2 cruisers left the Corfu port and head towards the northward in the North Corfu Strait and the 2 destroyers were destroyed by the mines laid and resulted in heavy damage and deaths.

After the explosion on 22^nd October, a note was sent by the Management of the UK to the Albanian Government in which they mentioned that they will sweep the channel in some time. On 31^st October, it was submitted by the Albanian Government to the United Kingdom that that they will not permit the action of the Rule of the UK unless the action that the UK Government intend stood beyond the territorial waters of the Albanian government. Further a request was also sent by the UK Government to the International Central Mine Clearance Board decided and on 1^st November 1946, it was decided by resolution that there must be sweep of the channel provided there is a consent of the Albanian Government.

On 10^th November 1946, the UK Government has communicated to the Government of Albanian that there would be a sweep of the Channel and that the same will take place on 12^th November. But, on 11^th November, the Government of Albanian objected that the UK Government has no authority to unilaterally decide. However, the Albanian Government further submitted that there is no problem that the channel is swept by the UK government however, it lay emphasis to evaluate as what area of the sea would be considered as part of the channel and thus make a proposal to form a Mixed Commission for the said purpose.

The Albanian further submitted that if the UK government still proceeded with its sweeping activity without taking the approval of the Albanian government even outside the channel then the same would be held within the territorial waters of the Albanian and wherein the foreign warships has no reason to sail and the action would thus held to be violation of the sovereign and territorial rights of the Albanian. On 12^th and 13^th November there was ‘Operation Retail’ that took place by the government of the United Kingdom.

Chiefly the government of UK held that the Albanian government is liable for the incident an must make compensation to the UK government. On the other hand, the Albanian Government held the UK government responsible for violating the territorial and sovereign rights of the Albanian.

Based on the above facts, there were few legal issues that arose.

The legal issues presented

The major issues that arose from the stated facts above includes:

1. whether the North Corfu Channel must be held to be part of the international Highways?
2. Whether the Albanian Government should be held liable for the explosion that took place on 22^nd October 1946 under the international laws and is there any liability to pay compensation?

The individual parties’ arguments / defenses / perspectives

The above issues are raised because of the arguments that are laid down by both the régime of the UK and the régime of the Albanian. The same are discussed herein below:

The arguments of the UK Government

1. It was argued by the British Government that the minefield which were laid down and which were the reason for the explosion were laid amid 15^th May 1946 and 22^nd October 1946 and the same were laid by seeking permission from the government t of Albanian, thus, Albanian government is accountable for the explosions and the loss that is caused to the UK Government and thus mist compensate for the same.
2. Further, the government of UK submits that on 22^nd October 1946 when the 2 destroyers entered the channel, then it was an innocent act and as per the Internal laws and rules the UK government has the precise to pursue acquitted way from the North Corfu Channel as the same is part of the global arteries and thus there is no need to seek any previous endorsement from the territorial state, that is, the Albanian government.
3. The UK Government also question that acts of the Albanian Royal Navy on 12^th and 13^th November 1946 when the minesweeping act ‘Operation Retail’ was carried on by the UK Régime without the permission of the Albanian government.
4. It was argued by the government of the United Kingdom that when the troops were moving on 22^nd October 1946 then at that time there was no notification or communication that was made by the government of Albanian regarding the mines and the danger they might face.

The arguments of the Albanian Government

1. The Albanian Government agreed that the North Corfu Channel is a strait as per the terrestrial sense but the government refutes the concern that the network is part of the international highways and thus there is no right to way occurs.
2. The Albanian régime also stated that the route was also not necessary amid the 2 parts of the high seas and the same is used only for local traffics to pass through the Corfu. Therefore, there is a need that a previous approval must be sought by the UK government from the Albanian government.
3. On 9^th December, Albania submitted that the only manner the court could deal with the case is by sway of special agreement. He argued that when at least one party is a state who is obligated to be bound by the jurisdiction of the court then records could only be carried out by special agreement. Albania relied on Article 26(1) and 40 (1) of the ICJ statue and submitted that no such agreement was carried out. (Bancroft and Stein, 1949)
4. Albania also argued that the firmness by the Security Council is not sufficient to held Albania to confirm the jurisdiction of the court. Further, being part of the UN member state does not mean that the state is adhering to the jurisdiction of the ICJ statue.
5. Another objection of Albania was that proceedings could only be tool place at a place where there is compulsory jurisdiction or where there is execution of special agreement.

After evaluating the arguments that are raised by the parties, it is now important to understand the judgement that is laid down by the courts.

The tribunal’s decision / Judgement handed down

On 9^th April 1949, it was decided by the court that Albania was liable for the explosion that the damage and the deaths suffered by the government of the UK. The court also held that the minesweeping by the government of the UK is an act which has violated the sovereignty of the Albanian Government. On 19^th December 1949 the court submitted that compensation must be paid to the United Government by the Government of Albania.

1. On 25^th March 1947, The International Court of Justice delivered its decision wherein by 15 to 1 votes it was held that Albania is bound by the authority of the International Court and is attained by Albania voluntarily. The court submitted that there are two correspondences that are exchanged and which held that Albania has informally submitted itself to the authority of the international court of justice. The court submitted that there is one application that was transmitted by the British government to the government of Albania and secondly there is a letter by the government of Albania to the court. The correspondence of these two letters has resulted in creating the jurisdiction ratione personaeand ratione materiae. One of the reasons for reaching at this decision was that the letter that was written by Albania was not provided by the agent of Albania but the  Deputy Minister of Foreign Affairs (Shabtai, 2006)
2. The court also dealt with the issues dealing with the jurisdictions and initiation of proceedings. On 26^th March the court dealt with the special agreement as held that all the proceedings will be dealt considering the special agreement as the base.
3. It was decided by the court that there is no violation by the United Kingdom of the territorial waters of the Albania on 22^nd October 1946 when the ships of UK transmitted in the Corfu Channel which was part of the territorial waters of the Albania. It was decided by the court as the court stated that the nature of any international strait is established by its association of 2 parts of the high seas and that the strait is acquired for international navigation. The load to prove the same lies on the UK as it is the applicant in the given case.
4. The court also decided the issue of innocent passage in favour of UK by 14 to 1 votes. The court submitted that there is presence of right to innocent passage when there is time of peace, such as the straits like Corfu Channel as it connects two parts of the high seas. The court further submitted that some kind of regulation of passage by the Albanian government is permissible but there is no requirement to seek any kind of prior approval from the Albanian or banning the warship straight away.
5. The law court disallowed the UK contention that Albania has laid the mines. No credibility was given to the claim raised by the régime of the UK. However, the court further stated that they are not concerned as who had placed the mines however, the fact is clear that the mines were in the territorial waters of Albanian and that there were evidence that placing of mines was the recent activity and at a place which is under very high level of security of the government of Albania. Thus, it can be presumed that the government of Albania must have knowledge of the operations of the minelaying in the Corfu Channel and thus it has the responsibility that it must notify other states of the navigations dangers that is present in the Corfu Channel.
6. The court also held that the ‘Operation Retail’ by the rule of UK is not a justified intervention and cannot be considered as an act of self-protection. The court submitted that every country must gave respect to the territorial soverignity as the same us one of the essences of the international relations.

Albania was held to pay UK£843,947 to the UK government as compensation which is around £23 million in 2016.

However, the decision that was provided by the International Court of Justice against Albania was considered unsettled for several years. The decision of the Corfu case has significant impact on the courts jurisprudence. The decisions is significant as it has impact on several other areas if law which is discussed herein under.The importance or significance of the case in international law (i.e. why the case is important in the development of international law).The Corfu Case is considered as one of the significant case laws which has impacted the various other areas of law.

Law of sea

Th Corfu Case is considered to be the steeping stone in the formation of the law of the Sea. When the decision of Corfu Case came there is a consensus that reached that there is a right of innocent passage that existed through the territorial seas for the warships at the time of peace, which was not earlier at Hague Conference on International Law, 1930.

In the 7^th session of the International Law Commission, 1955, a draft was submitted to the United Nations Conference on the Law of the Sea (UNCLOS I), 1958 wherein it was succumbed that the accurate of the cleared passage through international straits should not be postponed. The same was adopted exactly at UNCLOS I into Article 16(4) of the Convention on the Territorial Sea and the Contiguous Zone.

Later, the concept of transit passage and innocent passage was also made part of  United Nations Convention on the Law of the Sea (UNCLOS), 1982 which takes over the Convention on the Territorial Sea and the Contiguous Zone.

Use of Force

When there was no formation of the united Nations, the cases which deals with the use of force were held to be unsuitable for decision. However, after the Corfu Channel case, the decision of the case was held in three cases such as Nicaragua v. United States (1986); the Oil Platforms case (2003) and Armed Activities on the Territory of the Congo in (2005). After the Corfu case, the cases that deals with the use of force the courts try to avoid by referencing the UN Charter in its final decision and held to be customary international law.

International environmental law

Some of scholars has found that the decision that is pronounced in the Corfu case has significant impact on the development of the International environment law. It was later suggested that every state is not under the obligation to permitted to make use of his own territory to carry on acts which are against the right of some other state.

Public international law

The Corfu Case has been given importance in the current public international laws as it has laid down standard in the evidentiary and the facts of any case. It is the case wherein both kinds of experts were present at the time of oral, cross examination and questing by the legal officers. The courts also started taking circumstantial evidences into account. The court tries to resolve any kind of evidentiary issues.  The court also submitted that Albania has exclusive control over the territorial waters where the miens were laid down. The victim has limited power to provide evidence to authenticate the same and thus circumstantial evidences should be laid. This system must thus be applied by all international laws awhile pronouncing the decisions. Special weight must be provided when all kinds of evidences lay down a single conclusion.

Another change that is bought by the Corfu case is that ad hoc judges would not be appointed by the states as their own nationals and was rightly applied in subsequent cases of Aerial Incident of 27 July 1955. This was further authenticated by the presence of Article 35, paragraph I in the Rules of Court, 1978. Also, it is only in the Corfu Channel case that the Article 36(3) of the UN Charter was applied and the Security Council, has relied on the same.

Thus, the Corfu case has the significant impact not only at that time of the era but till today as it has tried to modify and change some of the most important legal frameworks not only in the domestic front but also at the international level.

Conclusion

The court after hearing the arguments of both the parties and the geographical conditions of the channel the court considered that the two part of the high seas are mostly used for global navigations. The court held that the North Corfu Channel must be held to be part of the global arteries and thus there is no requirement of any kind of approval to move from the innocent passage and there is no requirement to take permission from the state of Albanian at the time when there is no war taking place. On 9^th April 1949, it was decided by the court that Albania was liable for the explosion that the damage and the deaths suffered by the government of the UK. The court also held that the minesweeping by the government of the UK is an act which has violated the sovereignty of the Albanian Government. On 19^th December 1949 the court submitted that recompense must be paid to the United Government by the Government of Albania.

Reference List

Books/Articles/Journals

Academike, 2014, <https://www.lawctopus.com/academike/the-corfu-channel-case/> Accessed on 14^th May 2021.

H, Bancroft and E, Stein, June 1949,  "The Corfu Channel Case: Judgment on the Preliminary Objection". Stanford Law Review

Shabtai, R, 2006, The Law and Practice of the International Court, 1920–2005 (4th ed.).

Legislations

Statute of the International Court of Justice 

Case laws

Aerial Incident of 27 July 1955

Armed Activities on the Territory of the Congo in (2005).

Corfu Channel case.

Nicaragua v. United States (1986);

The Oil Platforms case (2003)..

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