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Max Planck Encyclopedia of Public International Law [MPEPIL]

Corfu Channel Case

Michael Waibel

Content type:
Encyclopedia entries
Product:
Max Planck Encyclopedias of International Law [MPIL]

Module:
Max Planck Encyclopedia of Public International Law [MPEPIL]
Article last updated:
March 2013

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 23 April 2025

Subject(s):
Innocent passage

Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020). 

A.  Introduction

1  The Corfu Channel Case marks the beginning of a rich and diverse role played by the International Court of Justice (‘ICJ’) in the judicial settlement of international disputes. After eight years of inactivity, the reorganized World Court laid lasting foundations for several important areas of international law. British warships passing through the Corfu Channel were severely damaged by mines in Albanian waters, and forty-four sailors lost their lives. The ICJ gave three judgments, the first of which rejected Albania’s preliminary objections, the second held Albania responsible on the merits, and the third on compensation awarded damages to the United Kingdom (‘UK’).

B.  Facts

2  On 15 May 1946, two British warships crossed the Corfu Channel and came under fire from Albanian fortifications. Albania refused the UK’s demand for an apology. In an exchange of notes, the UK took the position that warships could pass through the channel without Albania’s advance consent. Albania maintained that its advance permission was needed. On 22 October 1946, three British warships crossed the Corfu Channel, with the express instruction to test Albania’s reaction to their alleged right of innocent passage. The crews were to respond if attacked. The UK considered the channel to be free of mines, having swept the channel in 1944 and again in 1945. However, two British ships struck mines in the channel, and were heavily damaged, and British sailors died and were injured. No fire came from Albanian coastal batteries, and Albania sent out a ship waving a white flag.

3  On 13 November 1946, the British navy carried out a unilateral mine-sweeping and evidence-gathering operation within Albanian territorial waters (Territorial Sea). While the UK had announced these operations in advance, Albania had not authorized them and protested strongly (Protest).

4  In Resolution 22 of 9 April 1947 the United Nations (UN) Security Council (United Nations, Security Council) recommended that the dispute be referred to the ICJ without delay. Albania was not a member of the United Nations at that time, and was invited to be represented in the UN Security Council. Both countries accepted Resolution 22. On 22 May 1947, the UK unilaterally instituted proceedings. Albania strongly protested against the unilateral invocation of the ICJ’s jurisdiction, and argued that under the ICJ Statute a compromis between the two disputants was necessary to vest jurisdiction in the ICJ (see also International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State Applications).

5  However, Albania’s letter of protest emphasized that notwithstanding the UK’s unilateral application, it was, as an exception, prepared to appear in court in this case without creating a precedent for the future. Thereafter, Albania objected to the ICJ’s jurisdiction. Subsequent to the ICJ’s judgment on jurisdiction, Albania and the UK concluded a compromis. They called on the ICJ to decide whether Albania was responsible for the explosion and whether the UK’s mine-sweeping operation violated Albania’s sovereignty. This compromis formed the basis of the merit and damage phases of the proceedings.

C.  Holdings

1.  Preliminary Objection

6  In the Corfu Channel Case (Preliminary Objections) of 1948, the ICJ rejected Albania’s jurisdictional objections by 15 votes to one. The ICJ held that Albania voluntarily submitted to the ICJ’s jurisdiction by a letter indicating its willingness to appear in this particular case (forum prorogatum). But for this post hoc consent, the ICJ would have lacked jurisdiction. Unilateral referrals did not vest jurisdiction in the ICJ. The ICJ agreed with Albania’s contention that a special agreement between the two parties would have been necessary. The UN Security Council could not mandate dispute settlement. In a separate opinion, seven judges espoused the view that the ICJ should have explicitly rejected the British proposition that a recommendation of the UN Security Council could be considered binding.

2.  Merits

7  The Corfu Channel Case (Merits) of 1949 held Albania responsible for the mine explosions of 22 October 1946. The UK adduced evidence that the minefield was deliberately and recently laid by either Albania or by a third State with Albania’s complicity. The UK made specific allegations against Yugoslavia. The ICJ emphasized that Yugoslavia could not be accused or held liable in its absence. Otherwise a grave contravention of international standards of due process and natural justice would result. By eleven votes to five, the ICJ held that Albania’s failure to inform the British of the danger posed by the minefield in its territorial waters, despite its presumed knowledge, triggered its international liability (Corfu Channel Case [Merits] 22).

8  The ICJ’s decision turned on the finding by a commission of naval experts that Albania knew, as a matter of fact, that the mines had been laid. The commission ascertained disputed facts in situ, which were necessary for the ICJ to reach a decision on the merits, and later, to assess damages. The case thus established how the ICJ may gather additional information via experts (see also Gulf of Maine Case). The ICJ gave ‘great weight’ to their opinion (Corfu Channel Case [Merits] 21).

9  The question was not whether Albania had exercised due diligence, but which response was required in the face of actual knowledge under customary international law. The ICJ held that the laying of the minefield ‘could not have been accomplished without the knowledge of the Albanian government’ (Corfu Channel Case [Merits] 22).

10  Given Albania’s actual knowledge combined with the hazard posed by the mines, Albania was under an obligation to notify users of the Corfu Channel of the danger posed by the minefield. Albania could have warned the approaching British warships in time, but failed to do so. This obligation was grounded in ‘elementary considerations of humanity, even more exacting in peace than in war, the principle of the freedom of maritime communications, and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the right of other States’ (Corfu Channel Case [Merits] 22; Humanity, Principle of). The ICJ referred to general principles that no rule of positive law applied specifically to Albania’s conduct.

11  Crucial for the outcome of the case was the ICJ’s finding on innocent passage. The UK argued that the channel was an international strait (Straits, International), through which innocent passage was permitted without previous approval of the territorial State. Albania insisted on advance permission, and argued that the Corfu Channel was only of secondary importance in international navigation and no necessary route between two parts of the high seas. After analysing the geographical situation of the Corfu Channel, the ICJ recognized that warships had a non-derogable right to pass the Corfu Channel. The ICJ reasoned that the strait linked two parts of the high seas, and is actually used for international navigation (Navigation, Freedom of), albeit not indispensable to it.

12  The ICJ thus laid the foundations for the customary international law of international waterways (Transit Passage). Specifically, the ICJ developed criteria for defining international straits. First, such straits link two parts of the high sea. Second, their frequency of use indicates habitual use in international navigation. The coastal State has no right to restrict innocent passage in times of peace, unless a treaty prescribes otherwise. That the operation was designed to test Albania’s reaction to fire again was not fatal to the characterization as innocent passage. The motives for passage are immaterial, as long as the passage is innocent in its actions. Consequently, the passage of British warships through the Corfu Channel on 22 October 1946 did not violate Albania’s sovereignty.

13  Over time, questions have been raised whether the ICJ’s judgment concerning the right of innocent passage was based on an error of fact owed to the ICJ’s inability to access all relevant evidence, as the UK refused to disclose the admiralty orders for the ships sailing through the Channel (‘Admiralty Orders’; Carty 30–34). The ICJ did not consider the fact that the ships were at action station fatal to innocent passage, but rather a reasonable precaution given the previous firing several months earlier. The British government weighed the pros and cons of disclosing the Admiralty Orders for months. The Prime Minister ultimately decided that non-disclosure was the better option to win the case.

14  Albania raised a counterclaim against the UK for violating its sovereignty. The UK argued that it acted in self-defence to safeguard evidence, the corpora delicti. The ICJ rejected this argument, and held unanimously that self-help in gathering evidence located in another State’s territory, construed as intervention, violated international law (Corfu Channel Case [Merits] 34–35): intervention is a ‘manifestation of a policy of force’ that can no longer ‘find a place in international law’ and would lead to ‘perverting the administration of international justice itself.’ Sovereignty is an ‘essential foundation of international relations’ (Corfu Channel Case [Merits] 35; Intervention, Prohibition of). Judge Alvarez, concurring, noted that the ICJ sought to herald in a ‘new international law’ (Corfu Channel Case [Merits] 39), leaving the two World Wars firmly behind.

15  The ICJ declared the evidence neither admissible nor inadmissible, yet it appeared to form part of the ICJ’s factual record. The ICJ regarded Albania’s ‘complete failure to carry out its duties after the explosions, and the dilatory nature of its diplomatic notes’ as extenuating circumstances for the UK’s intervention. (Corfu Channel Case [Merits] 35). The ICJ noted the difficulty of evidence-gathering when the State that suffered an injury lacked access to the injuring party’s territory. As a counterbalance, a more liberal recourse to interferences of fact and circumstantial evidence was permissible.

16  Exclusive territorial control thus has a bearing on the methods of proof available. The ICJ endorsed circumstantial evidence when direct evidence is not produced and remains within the control of the State exercising exclusive territorial control. If the proof is drawn from inferences of fact, those facts must not leave room for reasonable doubt (Corfu Channel Case [Merits] 18). Still, the burden of proof does not shift, nor was there prima facie responsibility: ‘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’ (ibid; see also Oil Platforms Case [Iran v United States of America]).

3.  Compensation

17  The compromis did not explicitly authorize the ICJ to decide on the amount of damages. Albania refused to appear in the last stage of the proceedings on compensation (Corfu Channel Case [Assessment of the Amount of Compensation] 248). Notwithstanding, in 1949 the ICJ held that the compromis could not be regarded as narrowing the ICJ’s jurisdiction for a case it had already decided. Albania was ordered to pay the UK£843,947 in compensation. The ICJ thereby established a precedent for the award of damages for material injury. With respect to the UK’s violation of Albania’s sovereignty, the ICJ found by contrast that its declaration of illegality served as satisfaction for immaterial damage.

D.  The Settlement

18  The Corfu Channel incident poisoned relations between Albania and the UK for decades. The two countries had no diplomatic relations for more than 50 years (Diplomatic Relations, Establishment and Severance). While the UK recognized Albania in 1945 (Recognition), several attempts to restore diplomatic relations failed, in large part because of the outstanding compensation. Albania also wished to tie the resumption of diplomatic relations with the return of its gold (Monetary Gold Arbitration and Case). The UK obtained the gold from Switzerland, where Nazi Germany had deposited it after looting it from the Albanian central bank. Since the end of World War II, gold worth about US$13 million was held by the Bank of England on behalf of the Tripartite Gold Commission (United States, France, and the UK). All three governments needed to agree to return the gold, and the UK would only agree to return the gold once Albania paid the outstanding compensation from the Corfu Channel Case.

19  The UK and Albania reopened diplomatic ties in 1991, a move that coincided with an emerging settlement of the Corfu Channel and Monetary Gold cases. The two countries settled the Corfu Channel Case by the Memorandum of Understanding between the governments of Albania and of the United Kingdom (‘MoU’), signed in Rome on 8 May 1992. The MoU confirmed that the UK’s financial claims were now settled and ushered in a new era in their bilateral relations. Both sides expressed their regret about the Corfu Channel incident.

20  The UK agreed to deliver 1674 kg of gold, settling the Monetary Gold Case, and Albania paid US$2 million. The UK did not insist in interest payments, nor did Albania require compensation for having its gold administered by the UK for over four decades. The British Legal Advisor informed the ICJ and issued a press release on 15 May 1992. The Tripartite Gold Commission returned the gold to Albania in 1996, in a final settlement of a five-decade long dispute.

E.  Continued Relevance for Contemporary International Law

21  The crucial jurisdictional holding was that the UN Security Council cannot require a State to submit to the jurisdiction of the ICJ. A recommendation of the UN Security Council to refer a dispute to the ICJ is no substitute for the voluntary and unambiguous consent of the parties. The ICJ thus established the foundational rule that consent is the cornerstone of its jurisdiction, and by extension, of all other international courts and tribunals.

22  The case was the first on self-defence under the United Nations Charter (‘UN Charter’). The UK argued that the unilateral mine-sweeping did not violate Albania’s territorial integrity and political independence. Rather, it was a new and special application of the theory of intervention. The ICJ rejected both arguments. The threshold for the prohibition on the use of force is low, and most uses of force, independent of their length or intensity, are a violation of sovereignty. Even mere trespass suffices, and international law does not allow self-help. The ICJ thus adopted an expansive view of the prohibited uses of force under the UN Charter, and a broad principle of non-intervention.

23  The ICJ firmly established the obligation to not knowingly injure another State (sic utere tuo ut alienum non laedas). It impliedly rejected a theory of strict liability for harms emanating from territory under exclusive control. Instead, it adopted de facto a general theory of tort liability based on a general duty of care (Fitzmaurice 132–33). This principle has a profound impact, among others, on the law of State responsibility and international environmental law. It is found for instance in Principle 21 Stockholm Declaration ([16 June 1972] UN Doc A/CONF.48/14/Rev 1, 3) and Principle 2 Rio Declaration ([14 June 1992] UN Doc A/CONF.151/26/Rev 1 vol I, 3) and in Art. 4 (6) Convention for the Protection of the Natural Resources and Environment of the South Pacific Region ([1987] 26 ILM 41).

24  Perhaps the most enduring contribution is the ICJ’s holding with respect to innocent passage. It was incorporated into Art. 16 (4) Convention on the Territorial Sea and the Contiguous Zone ([done 29 April 1958, entered into force on 10 September 1964] 516 UNTS 205). Great strategic interests are at stake since the ability of States to project military power around the world hinges, to a considerable degree, on the free movement of warships around the world’s seas and straits, and is thus closely linked to freedom of navigation at sea. Nuclear deterrence, for instance, depends upon the untraceable presence of nuclear-armed submarines somewhere at sea. Straits are places where those submarines may easily be discovered or be impeded from progressing.

25  The Corfu Channel Case laid the groundwork for lenient evidence rules before the ICJ. States are generally free to submit evidence as they see fit, even if tainted by illegality. The ICJ’s approach starting with this case is to take the illegality into account when assessing the probative value of the illegally obtained evidence. International law knows no exclusionary rule, even though some authors advocate de lege ferenda that unlawfully gathered evidence should be excluded, especially insofar as violations of erga omnes obligations are concerned (Obligations erga omnes; Ius cogens).

26  The ICJ also laid down important markers on the required disclosure of evidence. A witness refused to answer a question, invoking national security. Likewise, the UK refused to produce the Admiralty Orders. Under its Statute, the ICJ was entitled to, and did take formal note of the British refusal to produce such evidence. Other consistent evidence indicated innocent passage and the ICJ did not draw any negative interference from the UK’s refusal.

27  Witness examination is likewise flexible. Witnesses may be examined without adhering to elaborate procedural rules. The rationale is to shed as much light as possible on the disputed facts. The case inaugurated the common practice that members of the ICJ may pose questions after examination-in-chief and cross-examination. Expert witnesses may be called (see also South West Africa/Namibia [Advisory Opinions and Judgments]; Temple of Preah Vihear Case).

28  The ICJ also introduced a set of general principles that have no match in municipal law and serve the basic goals of international law to secure the peace between States, preserve human dignity, and provide the consistent standards for resolution of international disputes—the ICJ’s reference to ‘elementary considerations of humanity’. Throughout its judgment, the ICJ emphasized general principles of international law that are not ascertainable from the sources of positive law.

29  The ICJ made important pronouncements on compensation, concerning for instance the valuation date, and no more compensation than requested. The ICJ also said that its own judgments are ‘final and without appeal’ (Corfu Channel Case [Compensation] 248).

30  The Corfu Channel Case foreshadows many important aspects of future cases before the ICJ, and addresses a large number of legal issues with continued relevance. The lasting influence of the case is particularly pronounced in the law on State responsibility, the law of the sea, the law of the use of force, and fact-finding by international courts and tribunals. The holdings of the ICJ also exerted great influence on several important general legal principles, such as international torts and elementary considerations of humanity. Both influenced codification and State practice.

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