!"#$%&'(#!

%"

The Coifu Channel Case aiose eaily In the life oi the 0niteu Nations 0iganization.
As a uispute it falls into one of the two main categoiies that have been noteu as
uominating inteinational ie-lations since Woilu Wai II, the categoiy which incluues
the uisputes between Communist anu non-Communist states as uiffeientiateu fiom
the uisputes aiising fiom the changing status of foimei colonies. It aiose fiom
inciuents which occuiieu in 1946, the yeai in which the Secuiity Council met fiist,
anu is an inciuent in the beginning of the "colu wai," although, at the time, the
ielations between the 0niteu States, uieat Biitain, anu the 0SSR hau alieauy
ueteiioiateu as a iesult of the ueaulockeu foieign Ninisteis' Confeience of 194S
in Lonuon anu the failuie of the Soviet 0nion to caiiy out the Yalta Agieements
iegaiuing the libeiateu countiies of Eastein Euiope.

The Secuiity Council met fiist in }anuaiy 1946. It agieeu to postpone substantive
questions until the seconu pait o*" the session in Septembei, 1946. The fiist
substantive mattei to be biought up was the complaint of the Iianian goveinment
iegaiuing Soviet influence. Next the Soviet 0nion anu the 0kiaine askeu the Council
to consiuei the subject of Biitish tioops in uieece anu Inuonesia. These moves maue
it impossible foi the Council to consiuei its pioceuuies calmly befoie being seiseu
with political uivisions.

The Coifu Channel Case was not piominent in the news. Its settlement uiu not have
uiiect inteinational consequence* of giavity, Its value foi futuie stuuy will stem
almost entiiely fiom its contiibutions to inteinational law. The Secuiity Council
uebates on the uieek situation anu uisaimament which weie caiiieu on concui-
iently, oveishauoweu it in the geneial attention of the public.

The case was anu is unique in many iespects. It is the only case in which the Secuiity
Council has iecommenueu that the paities iefei theii uispute to the Inteinational
Couit of }ustice. It is the only case in which the Inteinational Couit has consiueieu a
question involving secuiity inteiests of the paities. It is the only case in which the
Inteinational Couit has consiueieu a question involving a membei of the
Communist bloc. Lastly, it is the only case in which a paity has iefuseu to caiiy out a
juugment of the Couit.

Bistoiically, the case is a typical instance in which a uiffeience between two nations
becomes a mattei of inteinational concein when it Impinges on the fieeuom of the
seas. This situation has almost always iesulteu in a -fuithei uevelopment of
inteinational law.






TABLE 0F C0NTENTS
INTR0B0CTI0N i
Chaptei
I TBE ESSENTIAL FACTS 1
1. The Coifu Channel Inciuents 1
2. The Biplomatic Exchanges S
8* The Sole of the Secuiity Council 8
4. The Bole of the Inteinational Couit 1u

II C0NSIBERATI0N BY TBE SEC0RITY C00NCIL 1S

1. The Agenua Question 1S

2. The Competence of the Secuiity Council 18

S. The Subcommittee of the Secuiity Council .... 2S

4. The 0niteu Kinguom Resolution 28

III TBE INTERNATI0NAL C00RT 0F }0STICE ANB TBE C0RF0

CBANNEL CASS S4

1. The }uiisuictional Bispute S4

2. }uugment on the Neiite 42

S. The }uugment as to Compensation 48

4. Piinciples Embouieu in the }uugments Su

Iv C0NNENT ANB CRITICISN SS

1. Special Featuies of the Case SS

2. Chaitei Inteipietation S7

S. }uiisuiction of the Couit 61

4. The Special Agieement 6S

S. Evaluation of Eviuence 6S

6. Effect of Non-compliance 64

7. The Naintenance of Inteinational Peace anu Secuiity 6S
(*+,#-$ !

#*- -..-"#!+/ 0+(#.

1. #12 (3456 (178829 !8:;<28= 7

The uieek islanu of Coifu, lying in the Ionian Sea at the uieek-Albanian boiuei,
foims a naiiow hut navigable stiait which has its southein opening in the Ionian Sea
anu leaus towaiu the Auiiatic by way of the Stiait of 0tianto. The use of this stiait
by maiineis was such as to waiiant its being swept foi mines, anu this was uone in
1944 by an oiganization establisheu by the Allieu Bigh Commanu. A sweeping
opeiation was conuucteu in 0ctobei, 1944, anu in Novembei, 1944 the Allieu Bigh
Commanu announceu that the channel was safe foi navigation. Aftei the ueiman
suiienuei, the woik of cleaiing mines fiom Euiopean wateis was continueu by
an oiganization constituteu by an inteinational agieement signeu by authoiizeu
iepiesentatives of the 0niteu States, 0niteu Kinguom, Fiance anu the Soviet 0nion.
This oiganization, the Inteinational Cential Nine Cleaiance Boaiu, incluueu the
Coifu Channel in the ioutes iegulaily listeu anu iepoiteu on in the seiies of
auvisoiies to maiineis known as the Neuiteiianean Routing Instiuctions, anu hau
the channel swept in 194S as a piecautionaiy measuie,

1. 0niteu Nations, Secuiity Council, Seconu Yeai, 0fficial Recoius ,
Supplement No. 6, Exhibit III. 0n the fifteenth of Nay, 1946, two Biitish ciuiseis,
BNS 0iion anu BNS Supeib weie fiieu upon, while passing south thiough
the channel, by shoie batteiies on the Albanian coast. The fall of shot was abeam
anu astein in a pattein which maue it cleai that the ships themselves hau been the
taigets anu that these weie not waining shots.

0n the twenty-seconu of 0ctobei, 1946, the ciuiseis Leanuei anu Nauiitius ,
escoiteu by the uestioyeis Saumaieg anu volage . got unueiway fiom the islanu
poit of Coifu anu pioceeueu up the channel to the noith. At 14SS, BNS Saumaieg
was uamageu by an unueiwatei explosion piesumeu to be a mine. The explosion
occuiieu in the swept channel off the Albanian poit of Saianua. The uamage
was seveie anu BNS volage attempteu to take the uamageu ship in tow. In the
maneuveis piepaiatoiy to uoing this, volage in tuin was bauly uamageu by an
unueiwatei explosion. It is the lattei two occuiiences which foimeu the basis foi
the 0niteu Kinguom siue in the Coifu Channel Case. volage manageu by goou
seamanship to tow Saumaieg to Coifu wheie both ships weie beacheu. Saumaieg
became a total loss anu volage suffeieu majoi uamage. Foity-foui Biitish seamen
lost theii lives anu foity-two weie injuieu.

0n the twelfth anu thiiteenth of Novembei, 1946, Biitish naval foices conuucteu a
minesweeping opeiation in the wateis in which the explosions hau occuiieu. A
commanuei of the Tiench Navy,Capitaine ue Fiegate-Nestie, accompanieu the
opeiation as a foieign obseivei anu pioviueu a wiitten iepoit on the conuuct o*"
the opeiation. The Biitish minesweeping foices uis covpieu in the location wheie
the explosions hau occuiieu, a nelu o* twenty- two newly laiu mooieu contact
mines. The mines weie swept anu two weie toweu to Coifu foi examination fiom
whence they weie subsequently tianspoiteu to Nalta foi moie uetaileu analysis.

2. The Biplomatic Exchanges

The naval inciuents which have been ielateu weie paialleleu by ceitain uiplomatic
actions. The fiist coiiesponuence which shoulu be noteu heie is the uistiibution of
Neuii chaits anu pamphlets of the Inteinational Routing anu Repoiting; Authoiity
opeiating in conjunction with the Cential Nine Cleaiance Boaiu. The aieas of
Albanian teiiitoiial wateis swept by authoiity of the Cential Nine Cleaiance Boaiu
weie incluueu in these publications, anu the Coifu Channel itself was incluueu in the
ioutes numbeieu 18S2 anu 18S4 on the chaits. The Albanian goveinment , like
the goveinments of othei Neuiteiianean countiies, ieceiveu thiity copies of these
anu subsequent mine cleaiance infoimation, anu was thus, as the 0niteu
Kinguom stateu in its note of 9 Becembei 1S46 auuiesseu to Albania, "publicly
notifieu that the inteinational wateiway of the noith Coifu Channel was once again
open to navigation anu it anu othei swept channels, wholly oi paitly in Albanian
teiiitoiial wateis,

2. 0niteu Nations, Secuiity Council, Supplement No. 6, Exhibit v.
weie useu by Biitish anu othei ship* in possession of these uocument So" The
shelling of Biitish ciuiseis on the fifteenth of Nay hau biought a Biitish note of
piotest to Albania. This note iequesteu an immeuiate anu public apology anu an
assuiance that peisons iesponsible woulu be punisheu. The Albanian ieply to this
note, uateu 21 Nay, allegeu that the commanuei of the coastal batteiies hau signaleu
the ships to moie faithei off shoie, that they weie not flying theii flags, anu that
they hoisteu theii flags when fiie was openeu.

This ieply of Albania assumeu that foieign waiships uiu not enjoy the iight of
innocent passage in an inteinational stiait pait of which is incluueu in teiiitoiial
wateis, anu auueu that the ships woulu not have been fiieu upon hau they been
iecognizeu as Biitish ships. The 0niteu Kinguom ieneweu its piotest in a note
on S1 Nay 1946, pointing out that the Albanian ieply ignoieu iights establisheu by
inteinational law, anu that even if the Albanian goveinment supposeu that it hau the
iight to pievent the passage, the pioceuuie auopteu foi asseiting it, the aiming of
twelve live iounus at the vessels, was contiaiy to the piactice of all civilizeu
nations. The Albanian ieply to this note, uateu 21 }une, saiu that theie was no
intention of inteifeiing with navigation on the open sea oi in the Coifu Channel
pioviueu shipping uiu not entei Albanian wateis without peimission oi show
aggiessive intent. 0n 2 August in the concluuing note to this seiies, the 0niteu
Kinguom auviseu
Albania that it hau taken note of its ieply, that it coulu iecognise
no iight of a Powei to set conuitions foi entiy into a iecognizeu
Inteinational channel, that it uiu not agiee to give piioi notice of
passage, anu that if Biitish ships in the channel weie fiieu on in
the futuie, fiie woulu be ietuineu*

Thus a position hau been cleaily taken on the mattei by the
0niteu Kinguom but fiom the coiiesponuence, the position of Albania
was not so cleai. 0ne note hau stateu that the ships woulu not
have been fiieu upon hau they been iecognizeu as Biitish,, The
othei stateu that navigation in the Coifu Channel woulu not be in-
teifeieu with pioviueu it uiu not entei Albanian wateis. This
poseu an impossible pioblem since the noithein poition of the
cleaieu channel was almost entiiely within Albanian teiiitoiial wateis.

The passage of the channel on 22 0ctobei, uuiing which the
Saumaiez anu vol age weie mineu was, as biought out in subsequent tes-
timony of Biitish officeis, a test of Albanian intentions anu an
asseition of Biitish iights. The ciews weie at "geneial quaiteis"
foi the safety of the ships*

Following the inciuents of 22 0ctobei, which foim the basis of
the case, the 0niteu Kinguom auuiesseu a note to the Albanian uovein-
ment on 26 0ctobei. This note stateu that in view of the seiious
inciuents which occuiieu iecently to two of Bis Najesty 1 a waiships
passing thiough the Coifu Channel, anu of which the Albanian authoii-
ties weie no uoubt awaie, Biitish mlnesweeping authoiities woulu shoitly sweep
the channel. A similai communication was maue to the

uieek goveinment.

Albania ieplieu on S1 0ctobei, 1946, Bei note piotesteu the
violation of Albanian teiiitoiial wateis by Biitish waiships. It
stateu that Albania hau no objection to the piojecteu minesweeping
opeiation but that the ships engageu shoulu not entei Albanian tei-
iitoiial wateis. A Biitish note iefeiiing to the pievious notes of
26 anu S1 0ctobei, infoimeu the Albanian goveinment that sweeping of
the Coifu Channel woulu take place on 12 Novembei. It was stateu
that this was being uone in accoiuance with a unanimous uecision of

the Contiol Nine Cleaiance Boaiu on 1 Novembei that the channel

4
shoulu be ieswept. It uesciibeu the aiea to be swept as Neuii

aieas 18S2 anu 18S4 as uefineu by chaits in the possession of the
Albanian goveinment. It auueu that no ships woulu be stationeu In
Albanian wateis anu that the opeiation woulu be caiiieu out in
exactly the same way as the oiiginal sweeping uone in 0ctobei 1944
anu Febiuaiy 194S, to which the Albanian goveinment hau iaiseu no
objection. 0n 11 Novembei, Albania ieplieu to this note, piotest-
ing the unilateial uecision of the 0niteu Kinguom anu challenging
the piopiiety of facing a soveieign countiy with such a fait accompli
The note then pioposeu the establishment of a mixeu commission to
ueciue what aiea of the sea shoulu constitute the channel of naviga-



4. This iesolution hau containeu the clause "at the fiist favoiable
oppoitunity." tion to be swept. The Albanian note thus iestateu the Albanian posi-
tion anu iequesteu that any sweeping insiue Albanian teiiitoiial wateis
"wheie foieign waiships haie no ieason to sail," woulu be consiueieu a
Tiolation of Albanian teiiitoiy anu soveieignty, anu that the uamage
to the two Biitish waiships hau occuiieu in such wateis.

0n 9 Becembei, 1946, aftei evaluating the iesults of the
sweeping opeiation on the 12th anu 1Sth of Novembei, the 0niteu King-
uom auuiesseu a long note to Albania. This note ievieweu the histoiy
of the mine pioblem anu the inciuents leauing up to the minesweeplng
opeiation, incluuing the shelling of BNS 0iion anu Supeib anu the
mining of BNS Yolaee anu Saumaies . The note stateu the 0niteu King-
uom 1 o conclusion that the Albanian goveinment eithei hau laiu the
minefielu oi knew that it hau been laiu. It uemanueu an apology
foi the acts of 1S Nay anu 22 0ctobei, assuiance of no iepetition,
iepaiations to the 0niteu Kinguom foi the uamages anu compensation
to the ielatives of the men who hau lost theii lives. The last pai-
agiaph stateu that if no satisfactoiy ieply weie ieceiveu within foui-
teen uays, the 0niteu Kinguom woulu have no alteinative but to biing
the mattei befoie the Secuiity Council of the 0niteu Nations as a
seiious thieat to, anu bieach of, inteinational peace anu secuiity.
The Albanian ieply to this note iejecteu the accusations, while expiess-
ing iegiet foi the acciuent.

Albania hau meanwhile auuiesseu a seiies of foui notes to
the Secietaiy-ueneial of the 0niteu Nations, uateu 29 0ctobei, 12, 1S,
anu 27 Novembei, 1946. Each of these notes piotesteu the actions of
the 0niteu Kinguom in Albanian teiiitoiial wateis. The fiist two weie ciiculateu to
membeis of the ueneial Assembly anu the seconu
two to the Bepaitment of Secuiity Council Affaiis. A lettei ^iom
the iepiesentative of the 0niteu Kinguom on the Secuiity Council,
uateu 1u }anuaiy, 1947, anu auuiesseu to the Secietaiy-ueneial of
the 0niteu Nations, biought the uispute to the attention o*" the
Secuiity Council unuei Aiticle SS of the 0niteu Nations Chaitei.
This lettei anu its enclosuies became Secuiity Council Bocument
S247 anu openeu the case in the Secuiity Council, appeaiing on the
Piovisional Agenua at the Ninety-fouith Neeting helu at Lake Success,
New Yoik, on Fiiuay, 17 }anuaiy, 1947.

S. The Role of the Secuiity 0ouncil

The fiist pioblem which the Secuiity Council faceu was that
of the auoption of the agenua listing the case. The Societ 0nion
uelegate, Anuiti uiomyko, immeuiately objecteu on the giounus, fiist,
that all peaceful means foi settling the uispute outsiue the 0niteu
Nations hau not been exhausteu anu, seconu, that the uispute uiu not
thieaten peace anu secuiity. The mattei was biought to a vote on
2u }anuaiy, 1947, anu the agenua was auopteu by ten votes with the
Soviet 0nion abstaining. In accoiuance with Aiticle S2 of the 0.N.
Chaitei, Albania was inviteu to take pait in the uiscussion of that
item of the agenua unuei the conuition that she accept the obliga-
tions which woulu apply to a membei of the 0niteu Nations. By 28
}anuaiy a ieply hau been ieceiveu fiom Albania accepting the invita-
tion anu the conuitions imposeu. 0n 1u Febiuaiy, 1947, Ni. Bysni
Kapo, the Albanian iepiesentative, took a seat at the Council table anu the
substantive uiscussion of the Coifu Channel Caae began.
The fiist aspect of the case, as in most othei uisputes,
was that of the question of the competence of the Secuiity Coun-
cil to ueal with the mattei. This was effectively ueciueu by the

appointment on 27 Febiuaiy, 1947, of a Secuiity Council sub-commit-

S
tee to examine the eviuence anu iepoit to the Council. The sub-

6
committee ietuineu a iepoit to the Secuiity Council on 2u Naich,

7
1947. The Secuiity Council continueu its uebate until a 0niteu

Kinguom iesolution which woulu have iecommenueu that the two pai-
ties settle the uispute on the basis of Albania* s knowleuge of the
existence of the minefielu, was biought to a vote. This iesolu-
tion was vetoeu by the Soviet 0nion on 2S Naich, 1947. Polanu

8
also voteu against it anu Syiia abstaineu. The uebate continueu

until a seconu 0niteu Kinguom iesolution to the effect that both

paities shoulu immeuiately iefei the uispute to the Inteinational

Couit of }ustice was passeu, with Polanu anu the IT.S.S.R. abstain-

9
ing. This iecommenuation enueu the Secuiity Council's pait in



S. 0.N. Secuiity Council, Seconu Yeai, 0fficial Recoius. No. 21,
114th Neeting (27 Febiuaiy, 1947), pp. 4S2-4S8.

6. 0.N. Secuiity Council, Seconu Yeai, 0fficial Recoius . Supplement
No. 1u, Annex 22. Bocument SSuu.

7. Ibiu., No. 27, 12uth Neeting (2u Naich, 1947), p. S44.

8. ibiu., No. 29, 122nu Neeting (2S Naich, 1947), p. 6u9.
9- Sol* -- No. S4, 127th Neeting (9 Apiil, 1947), p. 727.



1u

1u
the affaii.

4. The Role of the Inteinational Coait

The pioceeuings befoie the Inteinational Couit of }ustice weie

11
instituteu by a wiitten application auuiesseu to the Registiai of

the Couit by If, 1. Beckett acting as agent foi the 0niteu Kinguom.

This application, uateu 1S Nay, 1947, was ueliveieu at The Bague on

22 Nay, 1947. Its ieceipt was maue known by the Registiai to the

uoveinment of Albania anu the Secietaiy -ueneial o*" the 0niteu Nations.

12
A lettei uateu 2 }uly, 1947, auuiesseu to the Registiai of the Couit

by the Albanian ueputy-ministei foi Foieign Affaiis, Ni, Bysni Kapo,
confiimeu the ieceipt by Albania o^ the 0niteu Kinguom Application,
asseiteu that "the Albanian uoveinment woulu be within its iights"
in holuing that a special agieement was a necessaiy pieliminaiy, but
went on to say that Albania accepteu the uecision of the Secuiity
Council, was piepaieu to appeai befoie the couit, anu that "its ac-
ceptance of the Couit' s juiisuiction foi this case cannot constitute
a pieceuent foi the futuie." The lettei then nameu as agent foi
Albania, Ni. Bahieman Ylli. This communication became the basis foi



1u. The Secuiity Council cannot be saiu to be entiiely ^iee of the
mattei since the 0niteu Kinguom is assuieu iecouise to it as a iemeuy
foi Albania's subsequent failuie to comply with the juugment o^ the
Inteinational Couit of }ustice.

11. Inteinational Couit of }ustice, The Coifu C hannel Cpie. Pleau-
ings. 0ial Aiguments. Bocuments . vol. I, p. 8.

12. Ibiu .. vol. II, p. 2S.






.iljtla



.






....

-



11



the asseition of juiisuiction "by the Couit when it was subsequently

uisputeu.

1S
The Piesiuent of the Couit, in an oiuei uateu }uly S1st, 1947,

fixeu the uates foi the submission of memoiial, countei-memoiial, ie-
joinuei, anu ieply. This sequence was inteiiupteu when on 9 Becembei,

14

1947, Albania fileu a Pieliminaiy 0bjection to the juiisuiction of

the Couit. The Couit pioceeueu to ieceive Biitish obseivations

anu submissions on the Albanian Pieliminaiy 0bjection anu on 2S Naich,

1S

1948, hanueu uown its fiist juugment. This juugment iejecteu the

Albanian pieliminaiy objection anu fixeu time limits foi the sub-
mission of subsequent pleauings.

0pon this asseition of juiisuiction by the Couit, both paities

16
fileu a Special Agieement which outlineu two specific issues in the

case anu askeu the Couit to iule. The Couit accepteu this Special

Agieement as the basis foi its fuithei pioceeuings anu hanueu uown a

17
seconu juugment on the meiits of the case on Apiil 9, 1949. This



1S. Inteinational Couit of }ustice, Repoits of }uugments. Auvisoiy
0pinions, anu 0iueis 1947-1948 . p. 4.

14. Inteinational Couit of }ustice, Pleauings. 0ial Aiguments. Bocu -
ments . vol. II, p. 8.

1S. Inteinational Couit of }ustice, Repoits of }uugments. Auvisoiy
0pinions, anu 0iueis. 1947-1948 . pp. 1S-48.

16. Inteinational Couit of }ustice, Pleauings. 0ial Aiguments. Bocu -
ments. The Coifu Channel Case . vol. II, p. 29.

17. Inteinational Couit of }ustice, Repoits of }uugments. Auvisoiy
0pinions, anu 0iueis. 1949 . pp. 4-169. juugment founu Albania iesponsible foi the
uamage to Biitish ships
anu the accompanying loss of life anu theiefoie liable foi compensa-
tion. The Couit baseu this finuing on its ueteimination of the
fact that Albania must have hau knowleuge of the piesence of the
mine fielu. In the seconu pait of this juugment the Couit founu
that Albanian soveieignty hau not been violateu on 22 0ctobei 1946,
but that Biitish minesweeping opeiation on 12 anu 1S Novembei,
1946 hau constituteu such a violation. This finuing in itself was
aujuugeu auequate compensation to the Albanian goveinment. The

Couit asseiteu its juiisuiction to fuithei assess the amount of

18
compensation uue the 0niteu Kinguom anu ieseiveu this uecision

until ieceipt of an Albanian statement as to which of the 0niteu

Kinguom claims it uisputeu. In its thiiu juugment in the Coifu

Channel Case, the Couit on 1S Becembei, 1949 fixeu the amount of

compensation uue fiom the Peoples Bepublic of Albania at L84S.947.

The Albanian goveinment was absent anu maue no submissions except

19
foi a iequest foi a piolongation of time limits ieceiveu by the

Couit on the uay those limits expiieu. The compensation has nevei

been paiu.


CBAPTER II
C0NSIBERATI0N BY TEE SEC0RITY C00NCIL

1. The Agenua Question

As has been noteu, a total of five peitinent communications
weie ieceiveu in the 0niteu Nations piioi to uiscussion o*" the Coi^u
Channel Case by the Secuiity Council. Toui of these communications
weie fiom Albania anu one fiom the 0niteu Kinguom. The 0niteu King-
uom note was placeu on the piovisional agenua of the Secuiity Council
but none of the Albanian notes weie. Was this an equitable pioceu-
uie anu in keeping with the spiiit anu lettei of the 0niteu Nations
Chaitei.

The fiist of these communications was a telegiam, uateu 29

0ctobei, 1946, fiom the Piesiuent of the Council of Ninisteis of the

2u
Peoples Republic of Albania auuiesseu to the Secietaiy-ueneial.

This telegiam was a piotest against an allegeu veision of the inci-
uents of 22 0ctobei, anu the telegiam was uesciibeu as a submission
thiough the Secietaiy -ueneial to the ueneial Assembly of the 0niteu
Nations of the facts allegeu anu a piotest against them. The 0niteu
Nations was iequesteu to inteivene "in oiuei to put a stop to such
piovocations." This communication was ciiculateu to membeis o^ the



2u. 0.N. Secuiity Counoil, Seconu Yeai, 0fficial Recoius . Supplement
No.2,Annex 9, p. 46 (Bocument S2Su).



14

ueneial Assembly on 1 Novembei, 1946. It waf not biought to the at-
tention of the Secuiity Council except as eviuence subsequent to plac-
ing the uispute on the agenua of that bouy at the instance of the
0niteu Kinguom. Since any membei of the Secuiity Council oi of the
ueneial Assembly has the powei to have an item placeu on a piovisional
agenua of eithei bouy, as the pioceuuial iules of these bouies pioviue,
anu this was not uone, the conclusion may be uiawn that the membeis
of the 0niteu Nations uiu not at the time wish the uispute to be uealt
with by eithei oigan.

Aiticle SS, paiagiaph 2, of the Chaitei pioviues that a state
which is not a membei may biing to the attention of the Secuiity Coun-
cil oi of the ueneial Assembly any uispute to which it is a paity if
it accepts in auvance, foi the puiposes of the uispute, the obligation
of pacific settlement as pioviueu in the Chaitei. The Albanian tele-
giam uiu not iefei to this aiticle, it specifically auuiesseu its alle-
gations to the membe is of the ueneial Assembly, anu it containeu no
acceptance of the obligation of pacific settlement. It was, neveithe-
less, ciiculateu to the membeis of the ueneial Assembly who weie at
peifect fieeuom to have the mattei placeu on a piovisional agenua, but

uiu not uo so .

21

The seconu Albanian telegiam was uateu 12 Novembei, 1946.

It consisteu of a piotest against the uecision o*" the 0niteu Kinguom
to sweep the Coifu Channel foi mines, anu an unielateu piotest against
the uemanu of the Ameiican mission to Albania to biing two waiships



21. Ibiu., p. 48,



1S

into Buiazzo foi the puipose of evacuating peisonnel. No action was
iequesteu oi suggesteu in this communication, which was, like the pie-
ceuing one, uistiibuteu to the membeis of the ueneial Assembly anu
susceptible to the same pioceuuies.

The thiiu of these telegiams, uateu 1S Naich, 1946, iefeiieu

22
to the pievious one. It gave an Albanian veision of ths mine-
sweeping on 12 Novembei, anu iequesteu that the 0niteu Nations "juuge"
the act anu give oiueis foi the withuiawal of Biitish foices fiom
Albanian wateis. This telegiam, accoiuing to the note pieceuing
these uocuments as they aie iepiouuceu in the 0fficial Becoius . was
iefeiieu to the Bepaitment of Secuiity Council Affaiis. This office
is an auministiative uivision of the Secietaiiat which has, as one of
its functions, assisting the Secietaiy-ueneial in his iesponsibilities
unuei Aiticle 99 of the Chaitei.

A fouith telegiam uisputeu the facts allegeu by the 0niteu

Kinguom anu iequesteu the Secietaiy-ueneial to uiaw othei "facts" to

2S
the attention of the Assembly of the 0niteu Nations. This telegiam

was al6o iefeiieu by the Secietaiy -ueneial to the Bepaitment of Secui-
ity Council Affaiis. The hanuling o*" the two last-nameu uocuments
was the complete iesponsibility of the Secietaiy-ueneial. Piesumably
the auministiative occasion was taken within the Secietaiiat not to
place the mattei on a piovisional agenua. As a ^inal uisposition,
this is not within the powei of the Secietaiy-ueneial, In accoiuance

16

with Aiticle SS(2) of the Chaitei, it woulu zeem manuatoiy that the
fouith telegiam he placeu on the piovisional agenua o^ the ueneial
Assembly, subject to piioi acceptance by Albania of the obligations
foi peaceful settlement pioviueu foi in the Chaitei. The effect of
this appaient iiiegulaiity in pioceuuie was nullifieu, of couise,
when the uispute came befoie the Secuiity Council at the instance of
the 0niteu Kinguom, the same iemeuy being available to Albania unuei
these ciicumstances as if she hau manageu h^is^lf to have the mattei
intiouuceu. Theie is a uiffeience in the oppoitunity affoiueu to
aii the case to public opinion, as between the Assembly anu the Secui-
ity Council, but the iemeuy available to a paity is gieatei if the
uispute is beii.g uealt with by the Secuiity Council. It is neveithe-
less woith noting that a non-membei state in exeicising its piivilege
unuei Aiticle SS, paiagiaph 2, f the Chaitei woulu uo well to make its
communication state explicitly its Chaitei authoiity anu the oigan to
which iefeiial is sought. The iisk of an auministiative uisposal of
the iequest within the Secietaiiat might thus be ieuuceu.

In evaluating the above actions it must be consiueieu that the
0niteu Kinguom hau been in uiiect communication with Albania on the
matteis which weie the subject o^ the Albanian telegiams, anu one of
the piinciples of 8.1, action as set foith in Aiticle SS, is the piioi
attempt by paities to settle theii uisputes by peaceful means. Theie
is no question but what placing such a uispute on the agenua of the
0niteu Nations while outsiue negotiations weie in piogiess woulu hazaiu
these negotiations. The Secietaiy-ueneial might well make such con-
siueiation the basis foi the timing of the intiouuction of uisputes to



17

the piovisional agenua, if not foi the final uisposition of application,

When all such auministiative pioblems aie settleu anu an item
is placeu on the piovisional agenua, its fiist uelibeiative obstacle
is the uebate on the auoption o-f the agenua. This is a pioceuuial
mattei anu it may be ventuieu that weie it not, a Soviet veto woulu
have blockeu Secuiity Council consiueiation befoie the substance of
the Coi-fu Channel uispute was evei taken up. The vigoious aiguments
of Ni. uiomyko against the auoption of this agenua aie inconsistent
with the pievious effoits o* Albania to biing the mattei befoie the
0niteu Nations. Be stateu that the case shoulu not be an appiopiiate
mattei fci Secuiity Council consiueiation because the possibilities
foi peaceful settlement hau not been exhausteu, citing the pioposeu

mixeu commission, anu fuithei that the uispute uiu not constitute a

24
thieat to peace anu secuiity. It is inconceivable that in view

of oveiwhelming opinion assuiing auoption o*" the agenua, the Soviet

uelegate took auvantage of an oppoitunity to veibally attack the

0niteu Kinguom foi puiely piopaganuists ieasons. Be abstaineu fiom

the vote anu all othei membeis, incluuing Polanu, voteu in favoi of

auoption. Nembeis of the Secuiity Council at this time weie:

Austialia

Belgium

Biasil

China

Colombia

Fiance

Polanu

Syiia

0niteu kinguom

0niteu States of Ameiica 2S

0nion of Soviet Socialist Republics.



24. 0.N. Secuiity Council, Seconu Yeai, Q-i-ficial Recoius . No. 6,
Ninety-fifth Neeting (2u }anuaiy, 1947), p. 11S.

2S. BttA-f p 11 7 .



18

Ab a geneial thing, the aigument that the Secuiity Council
shoulu not inteifeie at long as the paities may be able to ieach a
ieasonable settlement has seiveu as well to justify a iefusal to take
up questions with which membeis uo not wish to ueal foi any political
ieason.

The invitation which was issueu to Albania was only manuatoiy
unuei Aiticle S2 if the Secuiity Council consiueieu the question a
"uispute 11 within the meaning of the Chaitei. Theie was no such
specific ueteimination by the Council but it was implieu by the invi-
tation anu the question was hanuleu as a "uispute" by tacit consent
theieaftei. The imposition of conuitions upon Albania, as pioviueu
foi by Aiticle S2, tenus to confiim the opinion that the Secuiity
Council was acting unuei Aiticle S2 iathei than Aiticle S1. Theie is
an obligation to issue an invitation in the case o** a uispute unuei
Aiticle S2, but the Secuiity Council has the option of inviting a
non-membei to paiticipate in the uiscussion o^ any "question" unuei
Aiticle S1.

2. The Competence of the Secuiity Council

Fuithei uiscussion o^ the uispute by the Secuiity Council was
uelayeu penuing the aiiival of Ni. Bysni Kapo to iepiesent Albania.
Theie was some uiscussion in the Secuiity Council iegaiuing the scheu-
uling of the next uiscussions. It was suggesteu by the Chinese uele-
gate that a uefinite uate shoulu be nameu on which the Council woulu
iesume uiscussions iegaiuless of the piesence of an Albanian iepiesen-



19

26
tative. It was finally ueciueu to tieat this as an auministiative

uetail anu authoiise the Piesiuent of the Secuiity Council to communi-
cate with the Albanian goveinment iegaiuing the piobable uate of aiii-
val of its iepiesentative, anu to allow him to set the uate foi the
next meeting as he saw fit anu with iegaiu to his infoimation fiom

the Albanians. The uispute itself was thus fiist uiscusseu on 18

27
Febiuaiy, 1947, when Ni. Kapo took his seat at the Council table.

As has become almost customaiy, the uispute was intiouuceu by speeches
fiom the paities. The 0niteu Kinguom's case was intiouuceu fiist by
Sii Alexanuei Cauogan at the 1u7th meeting,- a meeting which was ue-
voteu entiiely to this piesentation. Bocumentaiy eviuence hau been
ciiculateu to membeis of the 0niteu Kinguom anu othei eviuence was
uepositeu with the Secietaiy-ueneial. Sii Alexanuei, aftei ieviewing
the inciuents anu the uiplomatic exchanges, iepoiteu the Biitish con-
clusions as uiawn fiom theii examination of the iecoveieu mines. The
most significant of these was that the minefielu hau been laiu in the

swept channel no moie than six months piioi to the explosions on 22

28
0ctobei. This conclusion was baseu on the lack o^ iust anu maiine

giowth founu on the mines. The iesulting iesponsibility of Albania
was aigueu unuei fiule Numbei 8 of the 19u7 Bague Convention anu exist-
ing inteinational law. Sii Alexanuei askeu that the Council



26. 0.B. Secuiity Council, Seconu Teai, 0fficial Becoius . No. 8, 97th
Neeting (S1 }anuaiy, 1947), p. 1S9.

27. Ibiu .. No. 1S, 1u7th Neeting (18 Febiuaiy, 1947), p. 29S.

28. Ibiu., p. 297. 2u

iecommenu settlement of the uispute by uiiect negotiation unuei Aiticle
S6 of the Chaitei, aftei making a finuing o^ fact without which such a
negotiation coulu not succeeu. Be submitteu the following conclu-
sions foi auoption:

(1) That an unnotifieu minefielu was laiu in the Coifu
Stiaits by the Albanian uoveinment oi with its connivance
iesulting in seiious injuiy to Bis Najesty's ships anu loss
of life anu injuiy to theii ciews.

(2) That the 0niteu Kinguom anu Albanian uoveinments
shoulu settle the uispute between them on the basis of the
Council* 8 finuing in (1) above, anu that, in the event of
a failuie to settle, eithei paity may apply to the Council
foi fuithei consiueiation of the mattei.

(S) That the Secuiity Council will ietain this uispute
on its agenua until both paities ceitify that it has been
settleu to theii satisfaction.

(4) That, since the laying of mines in peacetime with-
out notification is unjustifieu anu an offence against
humanity, anu since it is the uuty o^ goveinments to iemove
piomptly mines laiu in time of wai, the Secuiity Council
ieminus all States, whethei membeis of the 0niteu Nations
oi not, that it is incumbent on them to sweep oi peimit to
be swept all paits of theii teiiitoiial wateis wheie theie
is ieason to suspect the piesence o f mines. 29

The Albanian case was piesenteu by Ni. Kapo at the 1u9th meeting.
Ni. Kapo askeu why the Biitish iequest ieceiveu on 1u }anuaiy, 1947,
was immeuiately placeu on the agenua of the Secuiity Council wheieas
the Albanian iequest hau not yet been consiueieu. This point was not
uealt with in subsequent uebate, conceivably because it was not ielevant
anu because theie was no piejuuice to Albania's case, in spite of
Kapo's implication.

Ni. Kapo continueu with the Albanian veision of the inciuents.



29. Ibiu ., p. Su6.



21

Be intiouuceu the uieek civil wai as a factoi in Albania's militaiis-
tic postuie anu maue a long speech about the iole o* the Biitish
militaiy missions in Albania vis a vis the Communist goveinment, a
iole which, accoiuing to Ni. Kapo, was iesponsible *"oi the ueteiioi-
ation in 0niteu Kinguom Albanian ielations. As Sii Alexanuei
Cauogan stateu in ieply, the lengthy uesciiption of Albanian giiev-
ances in this speech only seiveu to stiengthen the piobability of
Albanian connivance in the mining of Biitish vessels. The fiist stage
in the substantive hanuling of the uispute, theiefoie, consisteu of
the piesentation of the case of each of the paities by means of speech-
es befoie the Secuiity Council.

Examination of the piess ieaction to these speeches is useful
at this point in pioviuing histoiical peispective. The issue aiouseu
little inteiest among Ameiican commentatois. Theie was goou factual
coveiage of the uebate in the Secuiity Council but the Ameiican piess
caiiieu no euitoiial comment. The uispute also ieceiveu goou covei-
age in the Biitish piess. The Iiish Times on 2u Febiuaiy uevoteu its
leauing aiticle to the subject anu saiu: "We have no paiticulai intei-
est in the veiuict. We uo, howevei, have a ueep inteiest in the fact
that the Biitish uoveinment invokeu the inteinational authoiity of
the 0niteu Nations in the cases of Albania anu Palestine." An aiti-
cle in the Noscow New Times allegeu that the inciuent hau been fabii-
cateu by the 0niteu Kinguom to inflame the alieauy embitteieu ielations

Su
between the countiies.



Su. 0.N. Secietaiiat, Suivey of 0pinion on the 0niteu Nations. No. 8 .
vol. II8 (24 Febiuaiy, 1947).



22

Aftei the piesentation by each paity o** Its siue of the uispute,
the Secuiity Council began to uebate its competence to ueal with the
mattei unuei the Chaitei. The issue was openeu by an Austialian pio-
posal foi the establishment of a subcommittee to examine the mattei
foi the Secuiity Council in oiuei to expeuite the hanuling of the case
anu eliminate extianeous consiueiations. Austialia accompanieu its
pioposal by submitting a iesolution that the Secuiity Council appoint

a subcommittee to examine all the eviuence anu make a iepoit to the

S1
Secuiity Council. Thus the Council was pioviueu with a soit of

uummy question aiounu which it coulu uebate the ieal issue, that of
its competence. The Piesiuent o*" the Council, Ni. F. van Langenhove,
of Belgium, calleu attention to Rule SS o^ the pioceuuial iules of
the Secuiity Council iequiiing that the uiscussion be confineu to the
motion on appointment o*" a subcommittee, but this iule was not stiict-
ly enfoiceu anu the main aiguments weie on the competence of the

S2
Council. The 0.S.S.R. anu Polanu aigueu that peaceful means of

settling the uispute outsiue the 0niteu Nations weie not exhausteu anu
that since theie was no thieat to the maintenance o^ peace anu secui-
ity, the Secuiity Council coulu not consiuei the mattei. The 0niteu
Kinguom ieply was that the foimei Albanian pioposal of a mixeu commis-
sion was not intenueu to settle the main issue anu theiefoie coulu not
be citeu as an Albanian attempt at peaceful settlement that hau been



S1. 0.N. Secuiity Council, Seconu Yeai, 0fficial Recoius . No. 18, 111th
Neeting, (Febiuaiy 24, 1947) p. S64.

S2. Ibiu ., p. S82.



ttt'A Cta. }ffi

;
- .'

-S Bllmitfii *aua

new I ">S

-


-lew ti * <X



2S

iejecteu by the 0niteu Kinguom. This mixeu commission woulu have
been uealing with a question alieauy settleu on an inteinational basis
by the Neuiteiianean Routing Instiuctions. The Albanian ieplies to
the 0niteu Kinguom notes hau shown at once, saiu Sii Alexanuei, that

theie was no hope at all of an amicable settlement between the two

SS
nations without outsiue assistance.

A point o*" oiuei was iaiseu uuiing this uebate by the 0niteu
Kinguom iepiesentative, the question being whethei as a paity to this
uispute he coulu vote on the question of the appointment of a sub-
committee, a question which he took to be pioceuuial. The iepiesen-
tative of the 0.S.S.R. aigueu that the Council's uecision anu all
otheis ielating to the uispute oi its hanuling weie substantive fiom
the moment the uispute was auopteu as an agenua item. The Piesiuent
of the Secuiity Council iuleu that the baiiing o^ the paities fiom
voting by Aiticle 27 of the Chaitei ielateu only to uecisions taken
by the Council unuei Chaptei III of the Chaitei, anu that his iuling
was, theiefoie, that a paity coulu not be baiieu fiom voting on the
establishment of a subcommittee such as that pioposeu by the Austialian
uelegate. The complete avoiuance in his iuling o^ a statement iegaiu-
ing the pioceuuial aspect o* the uecision is an example o*" the heuging
that enables a political bouy to suivive questions that might split a
legalistic uelibeiation iiievocably. The Piesiuent went as fai as
necessaiy to pioviue a cleai iuling anu not an inch fuithei, avoiuing
the focus of uiffeience as well as he coulu. The subcommittee was



SS. Ibiu ., p. S8S.



24



voteu foi anu appointeu on 27 Febiuaiy, 1947, the Soviet 0nion, Polanu,

S4
anu Syiia abstaining. The membeis o^ the committee veie selecteu,

aftei a geneial expiession o^ opinion on the pait o* most membeis, by

the Piesiuent whose selection was then appioveu by vote of the Coun-

SS
cil. The 0niteu Kinguom voluntaiily ietiaineu fiom this vote.

In appointing this subcommittee, the Secuiity Council in e^ect af-
fiimeu its competence in the mattei.

The aigument that the continuance of a uispute is not likely
to enuangei the maintenance of peace anu secuiity has ben put foi-
waiu in many cases. Biazil in paiticulai has aigueu foicefully that
a uispute shoulu only become the object of the Council's consiueiation
if its continuance is likely to enuangei the maintenance of inteina-
tional peace anu secuiity. In anothei case the Biazilian iepiesenta-
tive stateu: "To seek ieuiess in the Secuiity Council befoie the
tiauitional means of settlement have been exhausteu woulu amount to

tiansfeiiing to that bouy all the uiplomatic uifficulties iesulting

S6
fiom the ielations between States." Such a iestiicteu view was

not taken in this case anu has not geneially been taken by othei mem-
beis of the Secuiity Council. It iemains a seiviceable public



S4. The ieasons ^oi the Syiian abstention weie not cleai at the time
as the iepiesentative of this countiy uiu not expiess himself in the
Council. Ni. Lange o*" Polanu who hau voteu foi the auoption o^ the
agenua, hau been ieplaceu by Ni. Nochalowski, but he ietuineu to latei
sessions. 0.N. Secuiity Council, op. clt .. No. 21, 114th Neeting
(27 Febiuaiy, 1947), p. 4S2.

SS. Ibiu., p. 4S8.

S6. 0.N. Secuiity Council, Seconu yeai, 0fficial Recoius . No. 8u, 189th
Neeting (August 2u, 1947), pp. 21uS ff., quoteu in Lelanu N. uoouiich anu
Anne P. Simons, The 0niteu Nations anu the Naintenance of Peace anu Secui -
ity , p. 27u.

aigument against the consiueiation of uisputes which fiom the point
of view of any State, it is politically unuesiiable to uiscuss.

The establishment of the subcommittee intiouuceu a pioceuuial
point woithy of notice. 0ne authoiitative commentaiy asseits that
the establishment of the subcommittee o^ the Secuiity Council on the

question, although vieweu with no gieat enthusiasm by Albania, was

S7

not blockeu by the Soviet 0nion. This is tiue but misleauing foi

in fact the Soviet 0nion attempteu to block the subcommittee but was
pieventeu fiom uoing so by the Piesiuent's iuling on the voting iules
of the Council.

The subcommittee manuate was quite geneial in natuie. It was
set foith in the Austialian iesolution, by which the subcommittee was
to be appointeu to "examine all the available eviuence conceining the

above mentioneu inciuent anu make a iepoit to the Secuiity Council

S8
not latei than S Naich 1947. N

S. The Subcommittee of the Secuiity Council

The Coifu Channel Case at this point hingeu on a numbei of
uisputeu facts iegaiuing allegeu past causes of conuuct. These facts,
if ueteimineu, woulu be useu to fuithei asceitain whethei Albania was
oi was not iesponsible foi the uamage by mines to the Biitish vessels
in the Stiait, The subcommittee^ instiuctions le^t it complete lee-
way in an entiiely bioau fielu o^ action. It was not iestiicteu as
to what eviuence it might use but, on the contiaiy, enjoineu to examine



S7. Ibiu ., p. 187.

S8. 0.N. Secuiity Council, Seconu Teai, 0fficial Recoius No. 17, 11uth
Neeting (2u Febiuaiy, 1947), p. S64. The uate was latei changeu to
1u Naich, 1947 because of the uelay causeu by uebate.



26

all available eviuence. It was not askeu to iecommenu noi weie the
facts which it was to ueteimine uefineu. Thus the subcommittee was
left to inteipiet its own function as well as fuithei the Secuiity
Council's actions. It was composeu of Ni. ^uuaiuo Zuleta Angel of
Colombia as chaiiman, Ni. Basluck of Austialia, anu Ni. Lange of
Polanu .

In ietuining the submittee iepoit, each membei spoke befoie
the Secuiity Council, giving his inuiviuual views. Ni. Angel fiist
uesciibeu the subcommittee's inteipietation of its uuties as being
that o^ a iappoiteui which hau caiefully analyzeu anu stuuieu the
allegations anu countei-allegations of the paities conceineu so as to
intiouuce oiuei, methou anu system into the stuuy of the pioblem
without actually submitting any conclusions oi facts. The subcommit-
tee' s analysis hau ieuuceu the uispute to two questions upon which the
Secuiity Council shoulu concentiate. These weie;

(1) Biu a minefielu exist in the swept channel oppo-
site Saianua Bay on 22 0ctobei, oi uiu it not.

(2) Was this minefielu laiu by Albania oi with the
connivance of the Albanian uoveinment oi was it not. S ^

The iepoit of the subcommittee itself inuicateu the naiiowness

of agieement achieveu even in the piivacy of such committee uelibeia-

4u
tion. With iegaiu to the uamages anu loss of life suffeieu by the

Biitish ships, the iepoit stateu that no conflicting eviuence existeu.

Bowevei, no agieement hau been ieacheu conceining, the existence o^ the



S9. Ibiu .. No. 27, 12uth Neeting (2u Naich, 1948), p. S44.

4u. 0.N. Secuiity Council, Seconu Teai, 0fficial Recoius Supplements,
No. 1u, Annex 22.

minefielu, noi whethei the mines which hau causeu the uamage weie
pait of a fielu locateu in the subsequent sweeping opeiations. The
Polish membei piepaieu an appenuix to the iepoit in suppoit of his

opinion that the iepoit uiu not fulfill the task set by the Secuiity

41

Council in that it was not a iepoit "on the facts o^ the case."

In theii speeches inciuent to ietuining the iepoit, the
Colombian anu Austialian membeis stateu that theii conclusions weie
that the minefielu must have been known to Albania, although theie
was not sufficient pioof to allow a conclusion that Albania hau laiu
it. The Polish iepiesentative stateu that the eviuence uiu not sup-
poit the accusations that hau been maue against Albania, that theie
was little that the Secuiity Council coulu uo, anu suggesteu that it

woulu be appiopiiate to invoke Aiticle SS of the Chaitei calling upon

4S
the paities to settle theii uispute by the means listeu in that aiticle.

The subcommittee helu a total of ten meetings. Repiesentatives

of the paities to the uispute anu the uieek iepiesentative to the

0niteu Nations weie questioneu. Theie is no explanation in the 0niteu

Nations uocumentation foi the failuie of the Fiench uoveinment to allow

Commanuei Nestie, the foieign obseivei who accompanieu the maneuveiing

expeuition on IS anu 1S Novembei, to be examineu as was iequesteu by

4S
the subcommittee. 0pon the ietuin of this iepoit at its 12uth meet-



41. Ibiu . . Appenuix I.



42. 0.N. Secuiity Council, Seconu Yeai, 0ffic ial Becoius . No. 27, 12uth
Neeting (2u Naich, 1947), pp. SS6-SS7.

4S. The Fiench Ambassauoi's lettei is iepiouuceu in the subcommittee
iepoit. Captain Nestie appeaieu latei in the Couit heaiings. ing on Naich 2u, 1947,
the Secuiity Council iesumeu its uebate on the
subject.

4. The 0niteu Kinguom Resolution

The allegations attacheu to the iepoit by Polanu by means of
the Polish appenuix set off Secuiity Council ciiticism which was leu
by the 0niteu Kinguom. In conclusion to this speech, the 0niteu
Kinguom iepiesentative intiouuceu a iesolution which caiiieu a finu-
ing of Albanian connivance anu a iecommenuation that the paities

44
settle theii uispute on the basis of that finuing. Ensuing uebate

centeieu on that iesolution. The Albanian iepiesentative, Ni. Bysni
Kapo, hau continueu to sit in the meetings of the Secuiity Council
anu now spoke at length on the whole mattei without intiouucing any
new consiueiations. Be was suppoiteu by the Soviet uelegate. The
Belgian, Austialian, anu 0niteu States uelegates expiesseu theii
agieement with the Colombian uelegate's flauinga as stateu in the sub-
committee's iepoit. The 0niteu States pioposeu two amenuments to

4S
the 0niteu Kinguom iesolution. The fiist of these maue the iespon-
sibility of the Albanian goveinment stem fiom its knowleuge of the
mines iathei than fiom its connivance in laying them. The seconu
amenument ueleteu a piovision of the iesolution containing a geneial
ieminuei to all States that it was incumbent upon them to sweep oi
peimit to be swept all paits of theii teiiitoiial wateis wheie theie

44. Ibiu., p. S67.

4S. Ibiu ., p. S89.



29

is ieason to suspect the piesence of mines. This amenument has been
useu to uemonstiate avoiuance by the Secuiity Council of the setting

up o*" legal piecepts o** inteinational conuuct as compaieu with the

46
Assembly, although the substitution pioposeu in this amenument, to

the effect that the Secuiity Council:

1. Consiueis that the laying of mines in peace time
without notification is unjustifieu anu an o^ense
against humanity.

seems to suppoit stanuaius of inteinational conuuct without uealing

specifically with the application of inteinational law to minesweep-

ing, a sepaiate mattei not uiiectly connecteu with the uispute. As

it tuineu out latei in the Couit pioceeuings that the minesweeping

opeiation conuucteu by the 0niteu Kinguom was a violation of Albanian

soveieignty, an expiession by the Secuiity Council on the uuties of a

state in this iegaiu might have been contiauicteu.

A seconu amenument was pioposeu by Ni. Faioui, the uelegate of

47
Fiance. Ni. Paioui agieeu with the conclusions expiesseu by the

iesolution but wisheu the iesolution to expiess moie cleaily the steps
of ieasoning by which the conviction hau been ieacheu. As wiitten
it seemeu to imply that the Secuiity Council hau cleai pioo** that
Albania hau knowleuge of the minefielu. The expiession intiouuceu
was, "that this minefielu coulu not have been laiu without the knowl-
euge of the Albanian goveinment. w



46. uoouiich anu Simons, pp. cit .. 2u9.

47. 0.N. Secuiity Council, op. cit .. p. S96.



neeu i laN 8iifT ^ ^






N



6*



-u*



98

": i u1 4 an i i j\

- - Sa ectaiaqea a sii ;

- a saw ao}bjNiiX






Su

The 0niteu Kinguom accepteu the two amenuments pioposeu.
Intiouuction of such amenuments pioviues some eviuence that the con-
clusions emhouieu in a final iesolution have ben ieacheu by inuepen-
uent ieasoning.

The Polish uelegate intiouuceu anothei iesolution at this
point which asseiteu that all peaceful means o^ settlement hau not
been exhausteu anu calleu upon the paities to settle the uispute by
means of theii own choice, as pioviueu in Aiticle SS of the Chaitei.
Bebate continueu until the amenueu 0niteu Kinguom iesolution was
biought to a vote. This iesolution in its final -foim stateu that
the laying of mines in peacetime without notification is unjustifieu
anu an offense against humanity, that an unnotifieu minefielu hau
causeu uamage anu loss of life to Bis Najesty's ships anu ciews, a
minefielu that coulu not have been laiu without the knowleuge o^ the
Albanian goveinment, anu iecommenueu that the two paiti s settle theii

uispute on the basis of these finuings. This iesolution was uefeateu,

48
failing to obtain the affiimative vote o^ the Soviet 0nion. Polanu

joineu the 0.S.S.fi. in voting against it anu Syiia abstaineu, piesumably

foi the ieason expiesseu in a speech just piioi to the vote, that of a

lack of uiiect factual eviuence. to suppoit the finuing. The iesolution

that hau been pioposeu by Polanu was now withuiawn by that uelegate

appaiently in the hope that the case woulu be uismisseu. When the

Piesiuent iuleu that the question woulu iemain on the agenua, the Soviet

49
uelegate attackeu this iuling. A vote on this pioceuuial mattei was

48. Ibiu., p. 6u9.

49. Ibiu ., p. 611.









.









S1



foiestalleu by aujouinment on a motion o^ tbe 0niteu Kinguom.

At the 12Sth Neeting on S Apiil, 1947, the Coifu Channel Case

was again taken up by the Secuiity Council. The 0niteu Kinguom

uelegate ievieweu the case anu then intiouuceu a iesolution which

iecoamonueu tnat the paities to the uispute iefei it to tbe Inteina-

Su
tional Couit of }ustice. This iesolution waB suppoiteu by the

0niteu States. It was also suppoiteu by Biazil, but the Biazilian

uelegate ciiticiseu the hanuling of the case up to that point on the

legalistic giounus iefeiieu to pieviously. It was the ^eai o* this

uelegate that the Secuiity Council woulu become a louei couit ^oi all

uisputes oetween nations. Be felt that the Secuiity Council, a

political bouy, coulu not be limiteu, as a couit is, to consiueiations

of pioofs, facts, ciicumstances, anu lavs, but that its limitations

lay in the natuie of uisputes with which it woulu ueal anu that these

must enuangei the maintenance of peace anu secuiity. Theiefoie, in

sucn cases as the one at hanu, the Secuiity Council shoulu immeuiately

iefei the paities to the Inteinational Couit of }ustice iathei than

S1
ueal with the substance of the question itself. 0thei speeches

containeu expiessions which boie on the effect of the iesolution com-
bineu with obligations of the paities unuei the Chaitei. The Austial-
ian uelegate, Colonel Bougson, seemeu to take the opposite fiom
the Biazilian's view. Be asseiteu that "the Council is intenueu to

occupy a position compaiable to that of the Inteinational Couit of

S2
}ustice in ielation to justiceable uisputes. !l Be ieminueu Albania



Su. Ibiu .. 12Sth Neeting (S Apiil, 1947), p. 68S.

S1. Ibiu. , p. 686.

S2. Ibiu., 127th Neeting (9 Apiil. 1947), p. 721.



S2



that if It faileu to appeai befoie the Couit a juugment coulu he
given against it. Be concluueu that the Secuiity Council iecommen-
uation woulu be binuing anu that Albania was bounu by it because of
hei acceptance of the obligations of a membei.

The Soviet iepiesentative insisteu that wheieas it woulu have
been moie piopei to biing the case to the Inteinational Couit of

}ustice oiiginally, the investigation hau ievealeu no basis foi

SS
"uiagging Albania befoie the Inteinational Couit o^ }ustice." The

Piesiuent, speaking as the iepiesentative of China, answeieu the aigu-
ment that the case shoulu have gone to the Inteinational Couit of
}ustice oiiginally, by pointing out that wheieas Albania coulu not
oiiginally have been compelleu to appeai, not being a membei o^ the
0niteu Nations, she was now bounu by both the 0niteu Nations Chaitei
anu the Statute of the Couit. The 0niteu Kinguom's iesolution
passeu with all votes affiimative except foi the Soviet 0nion anu
Polish abstentions. A geneial uebate on the poweis anu uuties of
the Secuiity Council inspiieu by the iestiictive Biazilian position,

enueu inconclusively anu the Secuiity Council's iole in the Coifu

S4
Channel Case came to an enu.

Aiticle SS of the Chaitei was uesigneu to insuie that the

paities to a uispute woulu make an effoit to settle the uispute



SS. Ibiu ., p. 72S.

S4. The Secuiity Council hau uealt with the case in the following
meetings: 9Sth, 96th, 97th, 98th, 1u7th, 1u9th, 111th, 114th, 12uth,
121st, 122nu, 12Sth, 127th.



SS



SS
befoie iefeiiing it to the Secuiity Council. The majoiity of

the Council suppoiteu the view o^ the 0niteu Kinguom that the cii-
cumstances iequiieu the Council to uo moie than meiely uige the pai-
ties to ieach a settlement.



SS. uoouiich anu Simons, op. cit .. p. 274.



S4



CBAPTER III



TBE INTERNATI0NAL C00RT 0P }0STICE ANB TBE
C0RF0 CBANNEL CASE



1. The }uiisuictional Bispute

The Inteinational Couit of }ustice was establisheu concuiiently
with the 0niteu Nations, as pioviueu foi by the 0niteu Nations Chaitei
anu the Statute of the Couit which is annexeu to anu foims an integial
pait of the Chaitei. The Couit met fiist in Apiil anu Nay, 1946,
when a Solemn Inauguial Session was helu. Buiing this peiiou the
juuges uiew up the Rules of the Couit anu electeu the Chambei foi sum-
maiy pioceuuie. It met again in Febiuaiy-Naich, 1947, foi the annual
election of the Chambei anu to ueal with othei auministiative matteis.

In Nay, 1947, the Couit ieceiveu notification of the fiist case that

S6
was to come befoie it, the Coi^u Channel Case.

The Secuiity Council iesolution calling upon the paities to
submit theii uispute to the Couit hau been auopteu on 9 Apiil, 1947.
0n 22 Nay, 1947, the 0niteu Kinguom auuiesseu an application to the
Couit foi consiueiation of the case. Theie seems to have been no
question iaiseu of the obligations of the 0niteu Kinguom in this ie-
spect but actually, unuei subsequent inteipietation, theie was only a
moial obligation to caiiy out the Secuiity Council's iecommenuation.



S6. Inteinational Couit o^ }ustice, Yeaibook 1947-1948 . p. 1S.



h}t









_ ' -






-81 El



SS

The 0niteu Kinguom in aiguing foi the juiisuiction of the Couit took
the position that iecommenuations of the Secuiity Council weie "binuing
hut this iiev was not suppoiteu. Bow uiu Albania stanu now. Albania
hau accepteu the obligations of a membei of the 0niteu Nations in
appeaiing at the Secuiity Council, but ae in the case o^ the 0niteu
Kinguom, this obligation was only moial, anu a consiueiable uegiee
less than that of the 0niteu Kinguom. Theie was no othei basis foi
the Couit's juiisuiction as fai as Albania was conceineu. It must
be noteu that hau Albania initiateu pioceeuings in the Couit, the
0niteu Kinguom woulu have been bounu to appeai, having accepteu the
compulsoiy juiisuiction of the Couit.

0ne may speculate upon the effects of the siue issue of
Albania' 8 canuiuacy foi membeiship in the 0niteu Nations, upon hei
actions with iespect to the Couit. 0n 9 }uly, 1947 the Secuiity
Council iefeiieu the application of Alhania, togethei with those of
seveial othei states, foi membeiship in the 0niteu Nations, to its
Committee on the Aumission o*" New Nembeis. The actions o* Albania
with iespect to the Secuiity Council Resolution weie a natuial con-
siueiation foi this Committee which was instiucteu to piesent its

iepoit on 1u August, 1947. 0n 18 August, 1947, the Secuiity Council

S7
voteu not to iecommenu Albania ^oi membeiship. Among the consiuei-
ations mentioneu in the plenaiy session was the mining of the Coifu

S8

Channel.



S7. 0.N. Secuiity Council, Seconu Yeai, Q^icial Recoius . No. 179,
186th Neeting (18 August, 1947), p. 2uS7.

S8. Ibiu., pp. 2uSS-2uS6.



S6

The claim of the uoveinment o^ the 0niteu Kinguom aa set foith
in its Application, was as follows:

(1) That the Albanian uoveinment eithei causeu to be
laiu oi hau knowleuge o^ the laying of the mines.

(2) That two Biitish uestioyeis weie seiiously uamageu
anu foity- foui peisonnel o*' the Royal Navy lost theii
lives because o*** the mines so laiu.

(S) That the loss anu uamage weie uue to the failuie
of the Albanian uoveinment to fulfill its inteinational
obligations anu act in accoiuance with the uictates of
humanity.

(4) That the Couit shall ueciue that the Albanian
uoveinment is inteinationally iesponsible foi the saiu
loss anu injuiy anu is unuei an obligation to make iepa-
iation oi pay compensation to the uoveinment o. the 0niteu
Kinguom theiefoi; anu

(S) That the Couit shall ueteimine the iepaiation oi
compensation. ^9

The fiist communication ieceiveu fiom Albania by the Couit was

6u
a lettei uateu 2 }uly, 1947. This lettei, auuiesseu to the Regis-
tiai of the Couit, was uateu at Tiiana anu signeu by Bysni Kapo,
Beputy Ninistei *"oi Foieign Affaiis of Albania. The lettei, which
was to be the basis foi the asseition of }uiisuiction by the Couit,
maue the following obseivations:

(1) The 0niteu Kinguom was not entitleu to iefei the
uispute to the Couit by unilateial application.

(2) Aiticle 2S of the 0.N. Chaitei cannot be useu to
justify the 0niteu Kinguom pioceeuing, since it ielates
only to "uecisions."



S9. Inteinational Couit of }ustice, Pleauings. 0ial Aiguments. Bocu -
ments. The Coifu Channel Case . vol. I, p. 9.

6u. Ibiu .. vol. II, p. 2S.






8*






'















TI











-






lnoc|ai

















. * }

-





















i



S7

(S) The Albanian uoveinment "woulu be within it iights"
in holuing that a Special Agieement between the two pai-
ties was a nece8eaiy pieliminaiy to Couit consiueiation.

(4) The Albanian uoveinment accepts the Secuiity Coun-
cil's iecommenuation anu is piepaieu, notwithstanuing the
iiiegulaiity of the 0niteu Kinguom's action, to appeai be-
foie the Couit while making explicit ieseivations about the
mannei in which the case was biought to the Couit anu em-
phasizing that its acceptance of the Couit's juiisuiction
cannot constitute a pieceuent foi the futuie.

The lettei concluueu by appointing as agent foi Albania, Ki.
Kahieman Tlli .

0n the basis of the Special Application ieceiveu fiom the

0niteu Kinguom anu the Albanian lettei uesciibeu above, the Couit set

the time limits foi 0niteu Kinguom Nemoiial anu Albanian Countei-

61
memoiial, as 1 0ctobei, 1947, anu 1u Becembei, 1947, iespectively.

The 0niteu Kinguom memoiial was submitteu as iequiieu. As pievious-
ly noteu, the Secuiity Council hau uisposeu of Albania's application
foi membeiship on 1u August, 1947, moie than a month aftei the Albanian

lettei of 2 }uly, 1947. Theie is thus a ciicumstantial inuication

62
that Albania's "Pieliminaiy 0bjection," ieceiveu by the Couit on 9

Becembei, 1947, the uay befoie the Countei-memoiial was uue, ieflecteu

a change of policy towaiu the 0niteu Nations baseu on the iejection

of hei application foi membeiship.

0nuei the Rules of the Couit, befoie the heaiings on a case

begin, a paity may file a pieliminaiy objection to the juiisuiction of

the Couit. In such cases, the pioceeuings on the meiits of the case



61. Inteinational Couit of }ustice, Repoits of }uugm en ts, Auvisoiy
0p inions, anu 0iueis. 1947-1948 . pp. S-6.

62. Inteinational Couit of }ustice, Pleauings. 0ial Aiguments. Bocu -
ments. The Coifu Channel Case . vol. II, p. 9.



S8

aie suspenueu until this pieliminaiy point is iesolveu. The pielim-
inaiy objection iaiseu by Albania was on the giounu o* the inaumissi-
bility of the 0niteu Kinguom's application as the means of biinging

the case to the Couit. It insisteu that a Special Agieement was a

6S
necessaiy pieliminaiy. It was thus that a numbei of impoitant

iulings conceining juiisuiction came to be wiitten in the fiist case

befoie the Inteinational Couit.

When a pieliminaiy objection has been maue, the Couit sets
limits *"oi the submission of instiuments known as obseivations anu
submissions. In these appeaieu the 0niteu Kinguom's wiitten agiee-
ment foi juiisuiction. In public sittings helu on Febiuaiy 26th,
27th anu 28th, anu on Naich 1st, 2nu, anu Sth, 1948, the Couit heaiu
oial aiguments on behalf of the iespective paities. Bi. Igoi Baxnei,
Piesiuent of a Chambei of the Supieme Couit of Czechoslovakia, was
uesignateu as the Albanian juuge, au hoc .

The aigument of the 0niteu Kinguom in suppoit of the juiisuic-
tion of the Couit was baseu upon two sepaiate lines of ieasoning.
Sii Baitley Shawcioss, Counsel, iequesteu that they be consiueieu
inuepenuently. 0ne founuation of the aigument was an inteipietation
of the 0niteu Nations Chaitei which woulu have maue Albanian accept-
ance of juiisuiction manuatoiy because o*" the Secuiity Council ieso-
lution anu hei acceptance o. the obligations of a membei. The othei



6S. Aiticle 4u, paiagiaph 1. of the Statute u* the Couit!

1. Cases aie biought befoie the Couit, as the case may be,
eithei by the notification of the special agieement oi by a
wiitten application auuiesseu to the Registiai. In eithei
case the subject o^ the uispute anu the paities shall be
inuicateu.



S9

aigument foi juiisuiction was the Albanian lettei of 2 }uly.

The Albanian aigument followeu the lines set ^oith in its pie-
liminaiy objection. The Couit's juugment, by ^i^teen votes against
one (}uuge Baxnei), iejecteu the Pieliminaiy 0bjection submitteu by

the Albanian uoveinment anu set the time limits foi the filing of sub-

64
sequent pleauings. Theie weie two sepaiate opinions appenueu.

0ne was }uuge Baxnei' uissent. The othei was a sepaiate opinion of
}uuges Basuevant, Alvaiez, Winiaiski, Zoiicic, Be visschei, Bauani
Pasha, anu Kiylov, who concuiieu in the juugment but wieheu to auu to
the opinion. This auueu sepaiate opinion is of impoitance ^oi the
suggestion that it contains as to a legal inteipietation of Aiticle 2S
of the 0niteu Nation's Chaitei. These seven juuges expiesseu the
wish that the othei aigument conceining juiisuiction hau been uealt
with by the Couit. In theii opinion, the 0niteu Kinguom hau not
establisheu that compulsoiy juiisuiction existeu ^oi Albania because
of the action of the Secuiity Council. In this way the juugment of
the Inteinational Couit of }ustice on Naich 2S, 1948, suppoiteu the
inteipietation of the Chaitei which uistinguisheu between Secuiity
Council "iecommenuations" anu "uecisions," finuing the -foimei not binu-
ing.

0ne piominent legal wiitei stateu that fiom this juugment it can



64. Inteinational Couit o. }ustice, Repoits o** }uugments. Auvisoiy
0pinions, anu 0iueis. 1947-1948 . pp. 1S-29.









- a












.



.









4u



be sounuly infeiieu that if in the futuie, a State uesiies to object

to the juiisuiction, it shoulu uo so at the fiist possible oppoitunity

6S
anu in cleai anu unmistakable language."

In the same aiticle the Chaitei inteipietation was uealt with

in moie specific teims. The enfoiceability o^ a iecommenuation,

saiu the wiitei, hau been contuseu with its binuing e-^ect. In the

66
Chaitei a iecommenuation as to teims of settlement (i.e. meiits)

possesses no obligatoiy effect -"oi the paities, but nothing in the

piepaiatoiy woik iefeis to a iecommenuation uealing only with }gioceu-

67
uis of settlement. It is conceivable that a iecommenuation as to

teims shoulu stanu on a ui^^eient footing than one as to pioceuuie

only, but it must be aumitteu that no such uistinction appeais *"iom

the language.

In anticipation of the juugment o*" the Couit, the two paities

hau piepaieu a "Special Agieement" which they now iequesteu the Couit

to accept as the basis foi -fuithei pioceeuings in the case. This the

68
Couit uiu in an oiuei maue on Naich 26, 1948. This agieement sub-
mitteu to the Couit f oi uecision the following questions:

(1) Is Albania iesponsible unuei inteinational law ^oi
the explosions which occuiieu on the 22nu 0ctobei, 1946 in
Albanian wateis anu ^oi the uamage anu loss of human li^e
which iesulteu fiom them anu is theie any uuty to pay



6S. }ohn N. }ones, "Coi-^u Channel Case }uiisuiction," uiotius Society,
Pioblems of Public anu Piivate Inteinational Law . vol. SS (1949) p. Ill,

66. Italics mine.

67. Italics mine.

68. Ibiu . , p. SS.



41



compensation.

(2) Bas the 0niteu Kinguom unuei inteinational law
violateu the soveieignty of the Albanian Peoples* Repub-
lic by ieason of the acts of the Royal Navy in Albanian
wateis on the 22nu 0ctobei anu on the 12th anu 1Sth
Novembei, 1946, anu is theie any uuty to give satisfac-
tion.

The Couit hau taken fiom Nay 22, 1947 until Naich 2S, 1948 to
asseit its juiisuiction. It ietuineu a juugment on the meiits on
9 Apiil, 1949, having heaiu extensive aiguments anu maue its own
investigation of ceitain technical matteis.

The Albanian uoveinment uesignateu Bohuelav Beei, Boctoi of
Law anu Piocessoi in the Faculty of Law at Bino, as the juuge au hoc
-''oi the iemainuei o*" the case. Ni. Beei took the place of Ni. Baxnei.
In oiuei to ueal with the technical pioblems which aiose, the Couit
maue use of a Technical Commission, appointeu by oiuei of Becembei,
1948. This Commission maue wiitten ieplies to specific questions,
visiteu the scene of the inciuents anu was fuithei inteiiogateu by
the Couit. The paities weie alloweu to file obseivations with ie-
gaiu to the statements of the expeits. 0ne o" p the moie impoitant
conclusions of this Commission, baseu upon expeiiments actually con-
uucteu, was that "...to place a minefielu accuiately, as was uone,
iequiies a ieasonably goou visibility so that uefinite cioss-beaiings
on the coast can be taken, as theie is only one lighthouse in the
vicinity." Anu, "If uone in uaylight, it can unhesitatingly be saiu

that the opeiation must have been noticeu by the Albanian authoii-

69
ties."



69. Inteinational Couit of }ustice, Repoits o** }uugments. Auvisoiy
0pinions, anu 0iueis. 1949 . p. 149.



42



2. }uugment on the Neiita

The juugment of the Couit was stateu in two paits, ieplying to

7u
the coiiesponuing questions poseu by the Special Agieement. The

fiist pait, by a vote of eleven to *lve, gave juugment that the

Peoples' Republic of Albania was iesponsible unuei inteinational law

foi the explosions anu foi the uamage anu loss of human li^e which

iesulteu theiefiom. (By ten votes to six, the Couit ieseiveu foi

fuithei consiueiation the assessment o^ the amount o*" compensation.)

0n the seconu question, by fouiteen votes to two, the Couit

gave juugment that the 0niteu Kinguom uiu not violate the soveieignty

of the Peoples' Republic of Albania by ieason of acts in Albanian

wateis on 0ctobei 22nu, 1946, anu unanimously, that this soveieignty

was violateu in the couise o^ the opeiations on the 12th anu 1Sth o^

Novembei, 1946, anu that this ueclaiation by the Couit constituteu in

itself appiopiiate satisfaction. The juuges uissenting in the fiist

pait o-f the }uugment ielating to Albanian iesponsibility, weie }uuges

Winiaiski, Bauawi Pasha, Kaylov, anu Azeveuo, anu au hoc }uuge "Ecei.

The opinion has been calleu "notable -foi ielying upon bioau piinciples

of law, appaiently ueemeu to be self-eviuent anu stateu without cita-

71
tion of pieceuent oi authoiity." What weie the giounus foi uissent.



7u. Ibiu., p. S6.

71. Quincy vf iight, "The Coi^u Channel Case," Ameiican }ouinal of
Inteinational Law . vol. 4S, (1949), p. 491.



u 1









.















-



i















,



4S

The opinion of }uuge Aseveuo was a lengthy one. Be agieeu
in finuing Albania iesponsible, but not that the Couit coulu ueteimine
the amount of compensation. It is inteiesting to note that his opin-
ion contains a sentence which asseits that "Albania was bounu by the

72
Secuiity Council uecision to accept the Couit's juiisuiction." Be

uissenteu fiom the majoiity in taking the iestiictive view of the
Special Agieement, stating that it was not a question of competence
foi the Couit but one o-f ueteimining the contents o*" the petitnnu
The auoption of a special agieement, he saiu, piesupposes mutual ie-
nunciations, limiting the effect o^ the Couit's uecision to the main

fact of iecognition of iesponsibility, anu iegaiuing essentially the

7S
puipose of inteinational justice as being to ueclaie the iight.

}uuge Basuevant accepteu the whole o^ the opeiative pait o^

74
the juugment but stateu that he coulu not accept the ieasons given

by the Couit in suppoit o^ its juiisuiction to assess the amount of
compensation.

}uuge Winiaiski of Polanu stateu in his uissent that a binuing
of such exceptional giavity against a State iequiieu a uegiee of pioof
which hau not been attaineu in this case. Be also believeu that, in
submitting a special agieement, the paities hau put an enu to the pio-
ceeuings instituteu by the unilateial application, anu theiefoie the



72. Inteinational Couit of }ustice, Repoits of }uugments. Auvisoiy
0pinions, anu 0iueis, 1949, p. 9u.

7S. Ibiu ., p. 97.

74. Italics mine.






c












-









-






























44



Couit woulu not aujuuge compensation.

}uuge Bauawi Pasha baseu his uissent on the quality of the
ciicumstantial eviuence. Saiu he, "...the most ieliable uoctiine
takes the view that pioof by ciicumstantial eviuence is iegaiueu as
successfully establisheu only when othei solutions woulu imply cii-
cumstances wholly astonishing, unusual, anu contiaiy to the way of
the woilu." In his opinion the eviuence of the expeits iemaineu
conjectuial. Be uiu not finu that the Special Agieement alloweu
the Couit to ueciue what compensation shoulu be paiu the 0niteu King-
uom anu the Couit coulu not go beyonu that agieement.

}uuge Kiylov uisagieeu that (a) connivance hau been pioveu,
(b) cognizance of the mines hau been pioveu, oi (c) that the culpa
of Albania hau been pioveu. Be consiueieu that the Couit shoulu
inteipiet the Special Agieement iestiictively anu not aujuuge com-
pensation. At no point uiu he ueal with the basis of the affiima-
tive majoiity finuing that Albania must have hau knowleuge of the
minefielu.

}uuge Zoiicic, in an opinion uiffeiing fiom the othei uissents

in its extieme bievity, founu that theie was insufficient factual evi-

7S
uence to suppoit Albania's knowleuge of the piesence of mines.

}uuge Beei's opinion is the most uiiect iefutation of the Couit's

finuing. Be concluueu that the Albanian goveinment's knowleuge of

the minelaying hau not been juuicially establisheu, anu that the Couit

shoulu keep stiictly to the teims of the Special Agieement.



7S - ibiu ., pp. S7-S8.















'































4S



0n the seconu question put by the Special Agieement iegaiuing
the violation of Albanian soveieignty on the two sepaiate occasions,
the only uissent was with iegaiu to the inciuent of the 22nu of
0ctobei, 1947. This passage by Biitish ships on the uay of the
mining was -founu by fouiteen votes to two not to have been a viola-
tion of Albanian soveieignty. The Couit founu unanimously that the
subsequent minesweeping opeiation hau constituteu such a violation.

}uuge Kiylov, In his uissent iegaiuing the passage of 0ctobei

22, 1946, founu that the Biitish ships weie misusing the iight of

passage by attempting to intimiuate the Albanian authoiities with a

76
uisplay of naval powei. }uuge Azeveuo , on the othei hanu, asseiteu

that no such iight existeu foi waiships as uistinguisheu fiom mei-
chant ships. }uuge Beei, in his opinion, stateu that theie was no
conclusive law on the subject of innocent passage so that the actions
of both paities coulu be legally }ustifieu.

The above summation of the uissenting opinions is necessaiily
biief anu contains omissions. It is piesenteu not to illustiate the
}uuicial points consiueieu by the uissenting juuges, which weie of a
gieat numbei, but foi a biief examination as to uiffeience of opinion
as among the sixteen juuges of uiffeient nationalities. In such an
examination theie is a pattein of uivision between the juuges of
Soviet bloc oiigin anu otheis. The main issue that was iesolveu by
the Couit as uistinguisheu fiom the legal questions put to it, was
the question of Albanian iesponsibility. The fact that this was the



76. Ibiu ., p. 7S.



























94v



NttS






'






















46

main issue is attesteu by the fact that Secuiity Council uelibeiations
hau conceineu themselves mainly with this question, anu that much of
the gieatei pait of the opinions, stateu jointly oi sepaiately, uealt
with this aspect of the case. All foui of the Soviet bloc juuges
uissenteu fiom the majoiity opinion which was in opposition to the
inteiests of a Communist state. It is the unanimity of the Commun-
ist vote against the majoiity opinion which is of significance.
This significance is peihaps accentuateu iathei than uiminisheu by
the uissent of Bauawi Pasha, who, in political teims, uisagieeu with
the West. It must be auueu that in the wiitten uissents, theie is
little uuplication anu eveiy eviuence of inuepenuent ieasoning as
among the uissenteis. Night one concluue that a Communist juuge is
on his own in justifying his opinion if not in aiiiving at it.

The opinions o^ the Couit weie o* a uiffeient pattein with
iegaiu to the seconu question of the Special Agieement, iegaiuing
Albanian soveieignty. This opinion uealt with two sepaiate inciuents.
The Couit was unanimous in one finuing. The uissents in the othei
weie the Soviet Kiylov anu the Biazilian Aaeveuo. Theie is no simi-
laiity whatevei in the juuicial wiiting in which these uissents aie
expiesseu. }uuge Aaeveuo' s opinion seems to be a sinceie anu honest
attempt to asceitain the law iegaiuing innocent passage of waiships,
in which he aiiives at a uiffeient conclusion fiom the majoiity.
}uuge Kaylov, on the othei hanu, chaiges that the 0niteu Kinguom
violateu this iight by attempting to intimiuate Albania. In uoing
so he uepaits fiom the juuicial stanuaiu as though inevitably uiawn
to political accusations.



'.-sffi
iso0 m

eii*



47

77
Anothei view is expiesseu by Piofessoi 0livei }. Lissitsyn,

who finus it moie notewoithy that the juuges o* the nationalities of

the Communist states uiu not on all occasions take the cosition most

favoiable to the contentions of those states. The Soviet, Polish,

anu }ugoslav juuges joineu the majoiity in upholuing the juiisuiction

of the Couit against the objections of Albania. The Polish anu

Yugoslav concuiieu in the view that Albanian soveieignty hau not

been violateu by the peaceful passage, uiffeiing heie fiom the Soviet

anu Biazilian juuges. The Polish anu Yugoslav juuges concuiieu in

assessing the amount of compensation, fiom which the Soviet juuge

uissenteu.

This uiscussion woulu be incomplete without iefeience to the

78
sepaiate opinion o* }uuge Alvaiez. This opinion is in concuiience

with the majoiity, but }uuge Alvaies wisheu to give piominence to
ceitain consiueiations o-. a legal chaiactei in suppoit o^ that juug-
ment. In this opinion }uuge Alvaies auvances a theoiy of a new
inteinational law founueu on social Inteiuepenuence , a law which
often comes into collision with the "olu inteinational law." Be
ielateu to this the new function of thS Couit, a function not expiess-
ly confeiieu on the couit which pieceueu it, i.e., "that o** cieating
anu foimulating new piecepts, both foi olu pioblems wheie no iules
exist anu also foi new pioblems. 11



77. 0livei }. Lissit2yn, The Inteinational Couit of }ustioe (New Yoik,
19S1), pp. S6-S7.

78. Ibiu ., p. S9.

79. Ibiu., p. 4u.



48

A ciiticism o*" this opinion anu the theoiy which it sett foith,
while a woithy pioject, is beyonu the scope of this essay. It will
suffice to inuicate its uepaituie fiom accepteu iueas by obseiving that
these iueas holu that the peculiai quality o^ law which makes it a
necessity in any political society, iesiues not in its subject mattei
noi ethical content, but in its stability. Law gives to society that
element of fixity anu iegulaiity anu continuity without which no
coheient life is possible. }uuge Alvaiea' theoiy seems to be a
seiious attempt to ueal with the fact that contempoiaiy inteinational
law has become a bulwaik o* the existing oiuei anu has su^eieu a coi-
iesponuing uecline in the iespect it ieceives.

S. The }uugment as to Compensation

The Couit hau ieseiveu this juugment penuing ieceipt of Albanian

obseivations on the amount uemanueu fiom it by the 0niteu Kinguom.

By a Couit oiuei, }une 2Sth, 1949 was set as the time limit **oi these

obseivations. In anothei oiuei, this uate was extenueu to }uly 1st,

1949, at the iequest o*" the Albanian uoveinment. In an oiuei maue on

Novembei 9th, 1949, the Couit uiiecteu the examination of the 0niteu

Kinguom claims by naval expeits uesignateu by the Couit, the Albanian

8u
uoveinment having faileu to uefenu its case. 0n 1S Becembei, 1949,

the Couit fixeu the amount of compensation uue at L84S.947, appioximately

that claimeu by the 0niteu Kinguom. The amount awaiueu was baseu on

the ieplacement cost of the uestioyeu BNS Saomaiez . cost of iepaii to

the uestioyei BNS v olage . anu the cost of pensions anu othei giants maue



8u. Ibiu., p. 2S8.



49

by the 0niteu Kinguom to the victims anu theii uepenuents. }uuge
Kiylov anu }uuge leei uissenteu.

Albania, as has been noteu, uiu not appeai befoie the Couit
in this pait of the case, although the au hoc juuge, Ecei, iemaineu
seateu in these heaiings anu voteu. She has iefuseu to pay the com-
pensation anu the 0niteu Kinguom has attempteu to iecovei the sum by

othei means, one of which became an issue in the Nonetaiy uolu Case

81
biought to the Inteinational Couit by Italy in Nay, 19SS. An amount

of golu that hau been iemoveu fiom Boine by ueimany uuiing the Seconu
Woilu Wai, became subject to conflicting claims. The question as to
whethei the golu belongeu to Italy oi Albania was submitteu to aibitia-
tion unuei an unueistanuing between the 0niteu States, the 0niteu King-
uom, anu Piance that if the Albanian claim weie to be uphelu, the golu
woulu be given not to Albania but to the 0niteu Kinguom in paitial
satisfaction of the claims aiising fiom the Coifu Channel Case. At
the same time it was left open foi Italy to apply to the Inteinational
Couit of }ustice foi a uecision as to whethei, by ceitain claims of
Italy against Albania, theie woulu iemain anothei Italian claim anu,
if so, whethei this claim of the Biitish shoulu ieceive piioiity.
The aibitiatoi uphelu the Albanian claim in the fiist case anu Italy
biought the issue to the Couit, but the Couit ueciueu on }une 1S,
19S4, that it coulu not aujuuicate the Italian claim in the absence
of Albanian consent.

The obligation of Albania to pay the sum seems uncontestable.



81. uoouiich anu Simons. op. cit .. pp. SS7-SS8.



6u

Aiticle 94 of the Chaitei impose* upon Albania the obligation to com-
ply with the uecisions of the Couit in the Coifu Channel Case. It
fuithei gives the 0niteu Kinguom iecouise to the Secuiity Council anu
empoweis the Secuiity Council to make iecommenuations oi ueciue upon
measuies to be taken to give effect to the juugment.

4. Piinciples Embouieu in the }uugments

The Coifu Channel Case has been founu notable by wiiteis on

inteinational law foi the scope anu numbei of the points of law that

appeai fiom the juugments ienueieu. The following piinciples aie

82
citeu by }ohn N. }ones as appeaiing in the juugment on meiits:

(a) Eviuence in Inteinational Law ; Wheie a chaige of
exceptional giavity is biought against a state, conclusive
eviuence establishing a high uegiee of ceitainty is ie-
quiieu.

(b) Nethous of Pioof : Exclusive teiiitoiial contiol
exeiciseu by a state has a beaiing upon the methou of
pioof available to establish its knowleuge o*" an unlawful
act. Anothei state must be alloweu moie libeial ie-
couise to infeiences of fact anu ciicumstantial eviuence.

(c) Ciicumstantial "Bviuence : In inteinational law
ciicumstantial eviuence is subject to the ciiteiion that
it may have no ieason foi ieasonable uoubt.

(u) Bisclosuie of Bocuments : The Couit cannot ueiive
fiom iefusal to uisclose uocuments any conclusions uif-
feiing fiom those to which the actual events gave iise.

(e) Responsibilities of States : These iesponsibilities
extenu to giving an explanation anu showing, up to a point,
what the State has uone to investigate what p iima facie
appeais to be an act contiaiy to inteinational law. Benial
will not suffice.



82. }ohn N. }ones, "The Coifu Channel Case - Neiits," Biitish Yeaibook
of Inteinational Law . Tol. 26, 1949, pp. 447-4SS.



-aio-:
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.



S1



(f) Responsibilities of States : These iesponsibili-
ties incluue a meie omission if, as a iesult of that
omission, uamage is sustaineu by anothei state in the
couise of lawful activity.

(g) Bamages : Wheie a special agieement empoweis the
Couit to ueciue whethei compensation is uue in iespect

of the bieach of inteinational law, it also has juiisuic-
tion to ueciue whethei iepaiation is uue.

(h) Bamages : The Couit seems to accept the uoctiine
that extenuating ciicumstances may mitigate the amount of
uamages uue in iespect of a bieach of inteinational law.

(i) Stiaits in Naiitime Law : States in time of
peace have the iight to senu theii waiships thiough
stiaits useu foi inteinational navigation between two
paits of the high seas without the pievious authoiization
of a coastal state, pioviueu that the passage is inno-
cent. Conveisely, theie is no iight foi a coastal state
to piohibit such passage thiough stiaits in time of peace,

(j) Stiaits in Naiitime Law : The uecisive test of an
inteinational stiait is its geogiaphical situation as
connecting two paits of the high seas anu the fact of
its being useu foi inteinational navigation.

(k) Innocent Passage : A passage uoes not cease to
be innocent foi the puipose of this iule because its pui-
pose is to asseit a iight which has been unjustly uenieu.

(1) Inteivention anu Self-he Ip t The Couit has con-
uemneu inteivention. Self-help as uistinguisheu fiom
self-uefense is now no longei alloweu.

(m) The Inteipietation of Tieaties anu Special
Agieements : It is not necessaiy foi a juuge to use any
iules of inteipietation.


(n) The Inteipietation of Tieaties anu Special
Agieements : The Couit useu as elements in inteipieta-
tion the histoiy of the Special Agieement anu the sub-
sequent attituue of the paities.

(o) Inteipietation of Tieaties anu Special Agiee -
ments : The Couit inteipieteu the Special Agieement in
the light of vaiious ueclaiations of the paities which
pieceueu it.



S2

These point* have been iepeateu heie foi the puipose of inui-
cating the impoitance of the Coifu Channel }uugments in inteinational
law. They aie in themselves opinions iequiiing in each case legal
suppoit.



SS



CBAPTER Iv
C0NNENT ANB CRITICISN

1, Special Featuie a of the Case

In taking up the Coifu Channel uispute, the Secuiity Council
became seizeu of a cleaily uiawn East-West uispute. The extent of
the agieement uevelopeu in Secuiity Council uiscussion was that the
question was susceptible of solution on a legal basis anu shoulu,
theiefoie, be iefeiieu to the Inteinational Couit of }ustice. voting
on the two iesolutions placeu befoie the Council was uiviueu, the
Soviet bloc finuing itself in isolateu suppoit of Albania.

Although in many cases theie has been a feeling in the Council
that the paities conceineu coulu bettei settle theii uispute them-
selves, consiueiable uiffeience has existeu as to whethei the Council
shoulu Inuicate how the settlement shoulu take place. Theie have
been numeious occasions when membeis felt that a iesolution shoulu be

auopteu but have consiueieu that the teims of a paiticulai pioposal

8S
went beyonu the Council's authoiity. The Coifu Channel Case is

the only case which has been iefeiieu to the Inteinational Couit of

}ustice by viitue of a Secuiity Council iecommenuation to the paities

to the uispute. In two othei cases wheie some membeis auvocateu the

iefeiial by the paities to the Couit, the pioposals faileu to obtain



8S. uoouiich anu Simons, pp. clt .. pp. 278-279.



S4

the suppoit necessaiy foi auoption. 0nly six membeis voteu in sup-
poit of such a iecommenuation in the Anglo -Egyptian uispute anu less
than the iequiieu majoiity of the Assembly in consiueiation of the
tieatment of Inuians in South Afiica. 0pinion was expiesseu that
the Yugoslav complaint iegaiuing Tiieste anu the National Chinese

chaiges against the Soviet 0nion weie moie suitable foi consiueiation

84
by the Couit, but nothing fuithei was uone in this uiiection.

It must be boine in minu that the iecommenuation foi iefeiial
to the Couit in the Coifu Channel Case was only maue aftei the Soviet
0nion hau vetoeu a iesolution that woulu have in itself constituteu a
juugment. 0nuoubteuly the fact that the events unuei consiueiation
hau passeu anu weie not in the piocess of fuithei uevelopment was a
laige factoi in the ability of the Council to ueal at all with it.

The paities uiiectly conceineu have seluom agieeu that a
mattei was suitable foi consiueiation by any oigan of the 0niteu
Nations, In this case, Albania uiu accept the invitation to paitici-
pate in Secuiity Council uiscussion anu eventually agieeu with the
0niteu Kinguom on the questions to be submitteu to the Couit. Even
these facts cannot stanu inuepenuently, foi Albania must ceitainly
have hau its canuiuacy foi membeiship in the 0niteu Nations as a con-
siueiation, anu the "Special Agieement" was an Albanian legal tactic
aftei the fielu of aigument hau been cleaily shown in othei heaiings,
befoie the Couit.



84. uoouiich anu Simons, qp. clt .. p. SSS.



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It is veiy unusual foi states to allow a question involving
secuiity inteiests to be biought foith foi settlement on a legal basis.
In the case of the Coifu Channel, Albania uiu uispute the }uiisuiction
of the Couit wheieas the 0niteu Kinguom was the pioposei of the Secui-
ity Council iesolution. }uiisuiction was establisheu only by a
}uugment of the Couit, although it has been aigueu that Albania even-
tually intenueu to submit.

The laige numbei of points of law establisheu oi affiimeu
make the Coifu Channel Case piominent in all mouein case-books of in-
teinational law. 0ne of the ieasons foi the existence of this numbei
of points is the fact that the Couit was calleu upon to settle foui
sepaiate issues. These weie: its }uiisuiction, the two questions
askeu in the "Special Agieement, n anu the competence to aujuuge the
amount of compensation. In auuition, the Couit was compelleu to
evaluate a laige mass of eviuence leauing to iulings on the use anu
natuie of eviuence in inteinational uisputes.

In connection with the pioblem of evaluation eviuence, the

Inteinational Couit is authoiizeu in Aiticle Su of its statute to entiust

to an Inuiviuual buieau, oi commission, oi othei oiganization, the task

of making an inquiiy on giving an expeit opinion. 0nly in connection

8S
with the Coifu Channel Case has the Couit exeiciseu this powei.

Ceitain points of fact weie contesteu by the paities. In oiuei to

obtain an expeit opinion, the Couit, in an oiuei of 17 Becembei, 1948,



8S. uoouiich anu Simons, op. cit .. p. 174.



S6



uefineu these points anu askeu foi an expeit opinion fiom a committee

86
consisting of thiee naval officeis. A iepoit was maue in wiiting

87
to the Couit. This iesulteu in fuithei questions which leu to an

on the spot investigation, a seconu iepoit, anu inuiviuual questions

anu ieplies in wiiting.

0ne of the most significant featuies of the case stems fiom
the }oint Sepaiate 0pinion ienueieu by the seven juuges on the ques-
tion of the compulsoiy juiisuiction foi Albania. This opinion in
iejecting the asseition of the 0niteu Kinguom that iecommenuations
of the Secuiity Council weie binuing on membeis, suppoits this often
questioneu thesis, although not with the full foice of a }uugment
oi auvisoiy opinion, anu must be consiueieu in an inteipietation of
the obligations of membeis unuei Aiticle 2S of the 0.N. Chaitei.

As a final element of singulaiity, the case caiiies the inui-
viuual opinion of }uuge Alvaiez of Chile. It is possible to attach
too much impoitance to this featuie of the Couit's juugment, but it
has a ceitain ielevance to the entiie pioceeuings anu conceivably
woulu leau to ceitain conclusions on the pait of state* s paities to
uispute as to what might be expecteu of the Couit. The seveial ief-
eiences to "new inteinational law" woulu inuicate that }uuge Alvaiez
at least thought that the case hau been settleu on law which hau not
existeu befoie anu that the Couit was qualifieu to make such law.
This is not a juuicial piocess but a legislative one.



86. Commouoie }. Bull, Royal Noiwegian Navy, Commanuei S. 1. Foieshell,
Boyal Sweuish Navy, anu Lieutenant Commanuei S.}.W. Sllfeiiich, Royal
Netheilanus Navy.

87. Inteinational Couit of }ustice, Re poits of }uugments. Auvisoiy
0pinions, anu 0iueis . 1949, p. 142.









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2. Chaitei Inteipietation

The main inteiest of the case in the pioceuuial tense anu
consiueieu as a whole, stems fiom its beaiing on the inteipietation
of Chaptei III of the 0niteu Nations Chaitei ielating to the peaceful
settlement of uisputes. A conseivative inteipietation of Chaptei III
woulu still allow the 0niteu Kinguom, unuei Aiticle SS(1) to biing a
uispute of the natuie of the Coifu Channel uispute to the attention
of the Secuiity Council, as one which might leau to inteinational
fiiction. Such an inteipietation woulu fuithei, in acceptance of the
liteial woiuing of Aiticle S4 of the Chaitei, peimit the Secuiity
Council to investigate the uispute "in oiuei to ueteimine whethei the
continuance of the uispute oi situation is likely to enuangei the
maintenance of inteinational peace anu secuiity. 1 * Piioi to this ue-
teimination, theie is no powei pioviueu foi the Secuiity Council to
ueal with the uispute oi situation. In oiuei foi the Secuiity Coun-
cil even to iecommenu appiopiiate pioceuuies oi methous of aujustment
incluuing legal settlement, it must be acting unuei the poweis con-
feiieu by Aiticle S6 which iestiicts the fielu of action to "a uispute
of the natuie iefeiieu to in Aiticle SS oi a wituation of a like na-
tuie." This is a uispute "the continuance of which is likely to
enuangei the maintenance of peace anu secuiity." In ueteimining the
poweis of the Secuiity Council bestoweu by the Chaitei, caieful anu
conseivative ieauing of the text of Chaptei vI leaus to the conclusion
that it was wiitten with the piinciple in minu that the main function
of the Secuiity Council was the maintenance of peace anu secuiity anu





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S8

anu that the intiouuction foi its consiueiation of auuitional issues
of a less seiious natuie shoulu be iestiicteu by the Chaitei.

A moie liteial inteipietation of Chaptei vI iequiies the in-
tiouuction of something that is not in the text, anu that is eithei a
powei to make iecommenuations on cases which fall shoit of enuangeiing
inteinational peace anu secuiity oi a powei to pioceeu without a spe-
cific ueteimination as to the giavity of the uispute. The lattei is
the powei which the Secuiity Council has pieempteu in its piactice anu
iepiesents a libeial inteipietation of Chaptei vI in which the liteial
woiuing of the text is not alloweu to iestiict the Secuiity Council
fiom uealing with a paiticulai uispute.

The question aiises as to whethei in uealing with a uispute
such as the Coifu Channel case, the Secuiity Council uoes not tacitly
infei it to be a uispute which enuangeis inteinational peace anu secui-
ity, although it may not so iesolve in a foimal uecision. This im-
plies a uecision, even if infoimal, anu theie is no eviuence that such
uecisions take place. As a mattei o^ fact, although the Soviet 0nion
in the Coifu Channel Case aigueu that the case shoulu not be consiu-
eieu as it uiu not enuangei inteinational peace anu secuiity, the
aigument of the 0niteu Kinguom was not in uiiect iefutation of this
but iathei that the Secuiity Council was not iestiicteu to such matteis,
anu that hence the aigument of the Soviet 0nion hau no valiuity. This,
in piactice, has been the uecision of the Council as a bouy.

This piactice has establisheu a pattein of officially ignoiing
the point that the Chaitei iequiies a pieliminaiy evaluation by the



S9

Council of a uispute to ueteimine its ielation to the maintenance of
peace anu secuiity. By uoing this, the Council avoius much aigument
as to pieceuent anu pieseives its piivilege of uealing with all ques-
tions on a political basis iathei than a legalistic one. Theie is
no question of the fact that this gives this impoitant bouy a fiee-
uom of action that bioauens its scope. Theie aie two objections to
such a position. fiist, as was aigueu by the Biazilian membei in
the Coifu Channel Case, the Council may thus open its pioceeuings to
any uiplomatic uiffeience that aiises in a busy woilu, to the uetii-
ment of its main function, the maintenance of peace anu secuiity.
This objection assumes that because the Council consiueis one uispute
it must ueal with all otheis of like giavity which aie biought befoie
it. Bowevei, this has not been the case, anu the Council may ab-
stain fiom consiueiing a case foi political ieasons as well as ueciue
to take it up foi the same kinu of ieason. In this sense, the
establishment of gieat fieeuom of action foi the Council has hau no
auveise effect on its functioning to pieseive peace anu secuiity.
The seconu objection is moie seiious. If such a bouy can ignoie cei-
tain teiias of the inteinational covenant which gives it its legal
founuation, then it can ueal similaily with othei piovisions. The
legal value of the agieement itself becomes less If it is not caiiieu
out. This, it seems, it the piecaiious path along which all covenants
baseu upon political agieement must pass if they aie to evolve so as
to suivive changing ciicumstances anu not be shatteieu by the fiist
shift in political alineinent which occuis.















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The question of obligatoiy action by a non-membei was not sub-
jecteu to inteipietation once Albania hau accepteu the obligations of
a membei. The questions iathei ievolveu aiounu what these obligations
weie. In this case, theiefoie, the conuition imposeu by the Secuiity
Council upon Albania, geneial as it was, seems to have been auequate
to piotect the Council anu the 0niteu Kinguom fiom iiiesponsible
actions by a non-membei state, even if insufficient to Insuie satis-
faction.

Cf gieat inteiest among the seveial inteipietations o^ the
0niteu Nations Chaitei which stem fiom the Coifu Channel Case is the
uistinction appaient between the obligatoiy natuie of a Secuiity Coun-
cil uecision unuei the piovisions of Aiticle 2S anu the non-obligatoiy
natuie of a iecommenuation. Theie is nothing in the Chaitei that
makes a Secuiity Countil iecommenuation binuing upon membeis, but un-
uei Aiticle 2S membeis have bounu themselves to caiiy out the uecisions
of the Secuiity Council. Auuitional inteiest in the effect of the

Coifu Channel Case upon this point comes ^iom the fact that a quasi -

88
legal uecision was taken on it in the }oint Sepaiate opinions. The

0niteu Kinguom aigument that in this case a iecommenuation of the

Secuiity Council bounu Albania to accept the juiisuiction of the Couit,

impelleu seven juuges of the Couit to wiite a sepaiate opinion to the

effect that the 0niteu Kinguom aigument hau not convinceu them. This



88. Foi suppoit of this view, see Lelanu N. uoouiich anu Euwaiu Bambio,
Chaitei of the 0niteu Nations. Commentaiy anu Bocuments (2nu eu),
Boston, 1949, pp. 2u8-2u9; anu "Chaitei of the 0niteu Nations," Beaiings
befoie the Committee on Foieign Relations 79th Congiess, 1st Session,
Reviseu Euition, p. 81, quoteu in }ohn N. }ones, "Coifu Channel Case-
}uiisuiction," 0iotius Society, Pioblem s of Public anu Piivate Intei -
national Law . 7ol. SS (1949) p. 98.




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61

was not a juugment foi the Couit Itself uiu not iule upon this ques-
tion, basing its uecision on othei aiguments. It must, howevei, he
given weight in the inteipietation of Aiticle 2S anu its influence
theie is to iestiict the binuing actions of the Secuiity Council to
"uecisions.

S. }uiisuiction of the Couit

The question of juiisuiction became complicateu not because
Albania was not a paity to the Statute of the Couit noi a membei of
the 0niteu Nations, but because theie was no foimal instiument, such
as the special agieement oi wiitten application iefeiieu to in Aiticle
4u of the Statute, which ielateu to Albania's paiticipation in the
Couit pioceeuings. Since the pioceeuings of an inteinational couit
of law have no coeicive foice, theii eventual effectiveness is uepen-
uent upon the acceptance by the soveieign states oaity to the uispute
of the competence of the couit to ueal with the mattei, anu, eventually,
the finuing which the Couit makes. It theiefoie appeais extiemely
impoitant that this question of the willingness of the paities to
submit the uispute to a legal settlement be cleaily establisheu befoie
the Couit pioceeus. Some iequiiement foi the execution of a foimal
legal instiument foi this puipose assumes a ieal viitue theiefoie.
The natuie of inteinational law seems to piecluue a couit assuming
a juiisuiction establisheu in the &*nnei of the Coifu Channel Case,
Bowevei, the 0niteu Nations Chaitei iequiies that membeis comply with
the ueciiiions of the Couit, so that If a foimal finuing that juiisuic-
tion has been establisheu is hanueu uown, membeis of the 0niteu Nations



62

anu states who have accepteu the obligations of membeis must accept
this juiisuiction in tho paiticulai case being uealt with by the Couit.
Theie is, theiefoie, no question of the obligation of Albania to comply
with the ttecision of the Couit, in spite of the fact that the aigument
against the Couit's juiisuiction maue in suppoit of the pieliminaiy
objection seems well founuea. The fact that it was necessaiy foi
the Couit to go somewhat beyonu establisheu law to thus asseit its
juiisuiction, anu that it uiu so, again lenus coloiation to its pio-
ceeuings that cannot avoiu consiueiation by states paities to uis-
putes. Ibis is the fact that leu to }ones 1 comment in his aiticle,
"It can be sounuly infeiieu that if in th& futuie a State uesiies to

object to the juiisuiction, it shoulu uo so at the fiist possible

89
oppoitunity anu in cleai anu unmistakable language."

It is pousible to extenu the conclusions fiom a single case
too fai. It woulu iequiie a gieat ueal of auuitional suppoit to
uemonstiate a geneial moial effect iesulting fiom a Secuiity Council
Resolution. The actions of Albania coula be useu in paitial uemon-
stiation of such an aigument, foi Albania at no time subsequent to
the iecommenuation specifically uisputeu tne juiisuiction of the Couit,
but only the mannei in which it hau been establisheu. Theie is tne
implication in hei pioceeuings that sne will eventually appeai befoie
the Couit on the meiits of the case. Bei ieactions to the Secuiity
Council uecision on hei membeiship make an evaluation of the influence
upon Albania of the Secuiity Council iesolution veiy uifficult.



89. }ones, pp. clt .. pp. 91-111.















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4 The Special Agieement

The usefulness o** the compiomis oi special agieement In pio-
ceeuings befoie an inteinational tiibunal is cleaily uemonstiateu in
this case. It enables the Couit to ueal with the points at issue
upon which the paities haie agieeu to accept the Couit's uecision.
It piotects both the paities anu the Couit fiom uisagieeable sui-
piises. In this case it seems to have iepiesenteu the high-watei
maik of agieement.

The seemingly insignificant omission fiom the agieement of
the question of the amount of compensation to be paiu the 0niteu King-
uom in case of a finuing in its favoi became a majoi pioblem anu it
was necessaiy in this case, as it hau been in the pioblem of juiis-
uiction, foi the Couit to make a bioau assumption of powei in a sep-
aiate juugment. It is not cleai fiom the Couit uocuments whethei the
inseition of a clause in the Special Agieement to specifically pioviue
foi this uecision was consiueieu in the uiafting of the Special Agiee-
ment. Theie is no iemeuy foi Albania fiom the Couit's finuing, how-
evei, that such a clause was unnecessaiy.

S. Bvalttatlon of Eviuence

In both the Secuiity Council's consiueiations anu the heaiings
of the Inteinational Couit, it was necessaiy ^oi eviuence to be evalua-
teu. The eviuence intiouuceu to the Secuiity Council was entiiely
that biought foiwaiu by the 0niteu Kinguom in suppoit o^ its case.
The Secuiity Council ielieu upon a subcommittee to examine this evi-
uence anu iepoit, anu the subcommittee availeu itself o*" expeits. It






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64

It uoubtful if such eviuence coulu nave much moie weight in influenc-
ing uecisions of the Council than the simple statement o*" its content
by the state piesenting it. It is a fact that the expiessions anu
votes of the membeis of the Seuuiity Council will iepiesent theii
national policies anu not a veiuict as to what has oi has not been
pioveu in eviuence.

The Inteinational Couit, on the othei hanu, has theoietically
escheweu any consiueiations of national inteiest anu is in a position
to make an impaitial evaluation of eviuence. The uifficulty heie is
that the consiueiation of eviuence by an inteinational tiibunal auto-
matically gives the auvantage to the moie poweiful state which can
biing moie iesouices into play in builuing its case. It is foi this
ieason that the Inteinational Couit shoulu iestiict itself to the
application o^ law to pieueteimineu facts which shoulu be matteis of
agieement between the paities.

6. Bffect of Bon-compliance

A question that may be askeu is whethei Albania's iefusal to
execute the juugment of the Couit anu pay compensation, has not loweieu
the stanuing of the Couit. In one sense it must, but the effective-
ness of the Couit's action is nonetheless gieat. The legal points
establisheu in its finuings aie not affecteu by the non-compliance of
a paity. Theie is no question in woilu opinion but that the Couit
founu the Albanian goveinment iesponsible foi the loss of life anu
piopeity sustaineu by the 0niteu Kinguom, anu the iefusal of Albania
to pay the sum of money assesseu as compensation is an insignificant



6S



factoi in ielationship to an inteinational uecision accomplisheu on
the uispute. fttitheimoie, the 0niteu Kinguom still has a iemeuy un-
uei Aiticle 94 of the Chaitei.

7. The Naintenance of Inteinational Peace anu Secuiity

It will not be asseiteu that the hanuling of this case by the
oigans of the 0niteu Nations pieventeu a bieakuown of inteinational
peace anu secuiity. The uays of punitive expeuitions anu iepiisals
by Euiopean nations aie ovei. It can be saiu that the existence
of the 0niteu Nations pioviues an outlet foi the expiession of national
inuignation which, in othei times, has been constiaineu to hostili-
ties foi lack of anothei means of expiession. The neeus o*" a
soveieign nation to ieact in the inteinational fielu aie pioviueu *oi
in the ueneial Assembly anu the Secuiity Council. ueneially speak-
ing, militaiy measuies aie uistasteful to goveinments because they aie
final anu iiieveisible piocesses anu aie unueitaken only as a last
iesoit, fiequently in satisfaction of populai national feeling. Some
satisfaction o. such sentiment can be pioviueu by the public exposi-
tion of a nation's case befoie an inteinational bouy. In taking
note of this capacity of the 0niteu Nations oigans to pioviue outlets
foi national impulses it must be obseiveu that asiue fiom the Secuiity
Council's iecommenuation that the 0niteu Kinguom anu Albanian govein-
ments shoulu immeuiately iefei the uispute to the Couit, the 0niteu
Kinguom woulu have been fully entitleu to iefei the case uiiectly to



























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66

9u
the Couit unuei Aiticle 4u of the Statute. The competence of the

Couit woulu, as a sepaiate mattei, have hau to be establisheu.

0ne of the featuies of gieatest inteiest in the oveiall view
is the paiticipation of a non-membei in the activities of the Secuiity
Council anu Inteinational Couit anu the accompanying acceptance of
the iesponsibilities of a membei.

As foi the Secuiity Council itself, peihaps the gieatest
contiibution of the Coifu Channel Case to its piactice in the mainten-
ance of peace anu secuiity, was the affiimation of fieeuom of action
unuei the Chaitei accompanieu by the iestiictive inteipietation of
Aiticle 2S. The pioblems of the Secuiity Council in uealing with
uisputes become piimaiily those of selection of which cases shoulu be
uealt with anu can be effectively uealt with. It shoulu come as no
suipiise to a political bouy to uiscovei that "politics is the ait of
the possible."







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67