Case Digest: UK v. Albania (1949) [Corfu Channel Case]

 Public International Law | Act of State Organs 

Facts: 

• October 22, 1946:
• Two British cruisers and two destroyers enter North Corfu Strait in Albanian waters.
• The channel had been cleared in 1944 and rechecked in 1945, considered safe.
• Saumarez destroyer hits a mine near Saranda, heavily damaged; Volage sent to help, hits another mine.
• 45 British officers and sailors died, 42 others were wounded.
• May 15, 1946:
• Albanian battery fired at British cruisers.
• UK protested, stating innocent passage through straits is recognized by international law.
• Albania claimed foreign ships needed prior authorization to pass its territorial waters.
• August 2, 1946:
• UK warned of returning fire if attacked in the future.
• September 21, 1946:
• UK considered diplomatic relations with Albania but sought assurance of improved behavior.
• October 22, 1946:
• UK Government sent a Note to Albania about sweeping the Corfu Channel.
• Albania denied consent for sweep within Albanian waters, citing sovereignty violation.
• November 12/13, 1946:
• Navy conducted a sweep on November 12th/13th, 1946, in Albanian territorial waters, cutting 22 German GY type moored mines.

Issue:

• Whether Albania is responsible for the explosions, and whether there is a duty to pay compensation.  YES

Held: 

• The first question put by the Special Agreement is that of Albania’s responsibility, under international law, for the explosions on October 22nd, 1946. The Court finds, in the first place, that the explosions were caused by mines belonging to the minefield discovered on November 13th. It is not, indeed, contested that this minefield had been recently laid; it was in the channel, which had been previously swept and check-swept and could be regarded as safe, that the explosions had taken place. The nature of the damage shows that it was due to mines of the same type as those swept on November 13th; finally, the theory that the mines discovered on November 13th might have been laid after the explosions on October 22nd is too improbable to be accepted. In these circumstances the question arises what is the legal basis of Albania’s responsibility? The Court does not feel that it need pay serious attention to the suggestion that Albania herself laid the mines: that suggestion was only put forward pro memoria, without evidence in support, and could not be reconciled with the undisputed fact that, on the whole Albanian littoral, there are only a few launches and motor boats. But the United Kingdom also alleged the connivance of Albania: that the mine laying had been carried out by two Yugoslav warships by the request of Albania, or with her acquiescence. The Court finds that this collusion has not been proved. A charge of such exceptional gravity against a State would require a degree of certainty that has not been reached here, and the origin of the mines laid in Albanian territorial waters remains a matter for conjecture.
• The United Kingdom also argued that, whoever might be the authors of the mine laying, it could not have been effected without Albania’s knowledge. True, the mere fact that mines were laid in Albanian waters neither involves prima facie responsibility nor does it shift the burden of proof. On the other hand, the exclusive control exercised by a State within its frontiers may make it impossible to furnish direct proof of facts which would involve its responsibility in case of a violation of international law. The State which is the victim must, in that ease, be allowed a more liberal recourse to inferences of fact and circumstantial evidence; such indirect evidence must be regarded as of especial weight when based on a series of facts, linked together and leading logically to a single conclusion.
• In the present case two series of facts, which corroborate one another, have to be considered.
• The first relates to the Albanian Government’s attitude before and after the catastrophe. The laying of the mines took place in a period in which it had shown its intention to keep a jealous watch on its territorial waters and in which it was requiring prior authorization before they were entered, this vigilance sometimes going so far as to involve the use of force: all of which render the assertion of ignorance a priori improbable. Moreover, when the Albanian Government had become fully aware of the existence of a minefield, it protested strongly against the activity of the British Fleet, but not against the laying of the mines, though this act, if effected without her consent, would have been a very serious violation of her sovereignty; she did not notify shipping of the existence of the minefield, as would be required by international law; and she did not undertake any of the measures of judicial investigation which would seem to be incumbent on her in such a case. Such an attitude could only be explained if the Albanian Government, while knowing of the mine laying, desired the circumstances in which it was effected to remain secret.
• The second series of facts relates to the possibility of observing the mine laying from the Albanian coast. Geographically, the channel is easily watched: it is dominated by heights offering excellent observation points, and it runs close to the coast (the nearest mine was 500 m. from the shore). The methodical and well-thought-out laying of the mines compelled the minelayers to remain from two to two-and-ahalf hours in the waters between Cape Kiephali and the St. George’s Monastery. In regard to that point, the naval experts appointed by the Court reported, after enquiry and investigation on the spot, that they considered it to be indisputable that, if a normal look-out was kept at Cape Kiephali, Denta Point, and St. George’s Monastery, and if the lookouts were equipped with binoculars, under normal weather conditions for this area, the mine-laying operations must have been noticed by these coastguards. The existence of a look-out post at Denta Point was not established; but the Court, basing itself on the declarations of the Albanian Government that lock-out posts were stationed at other points, refers to the following conclusions in the experts’ report: that in the case of mine laying 1) from the North towards the South, the minelayers would have been seen from Cape Kiephali; if from South towards the North, they would have been seen from Cape Kiephali and St. George’s Monastery.
• From all the facts and observations mentioned above, the Court draws the conclusion that the laying of the minefield could not have been accomplished without the knowledge of Albania. As regards the obligations resulting for her from this knowledge, they are not disputed. It was her duty to notify shipping and especially to warn the ships proceeding through the Strait on October 22nd of the danger to which they were exposed. In fact, nothing was attempted by Albania to prevent the disaster, and these grave omissions involve her international responsibility.