The Corfu Channel case (French: Affaire du Dtroit de Corfou) was a public international law case heard

before the International Court of Justice (ICJ) between 1947 and 1949, concerning state responsibility for
damages at sea, as well as the doctrine ofinnocent passage. A contentious case, it was the first of any type
heard by the ICJ after its establishment in 1945.
Following a series of encounters from May to November 1946 in the Corfu Channel between the United
Kingdom and the People's Republic of Albaniaone of which resulted in damage to two Royal Navy ships and
significant loss of lifethe United Kingdom brought suit in the ICJ seeking reparations. After an initial ruling on
jurisdiction in 1948, the ICJ issued separate merits and compensation judgments in 1949. The Court awarded
the United Kingdom 843,947. This amount remained unpaid for decades, and British efforts to see it paid led
to another ICJ case to resolve competing Albanian and Italian claims to more than two tons ofNazi gold. In
1996, Albania and the United Kingdom settled the judgment along with Albania's outstanding claim to the gold.
Corfu Channel has had a lasting influence on the practice of international law, especially the law of the sea.
The concept of innocent passage used by the Court was ultimately adopted in a number of important law of the
sea conventions. The stance taken by the Court on use of force has been of importance in subsequent
decisions, such as Nicaragua v. United States. Additionally, the case served to set a number of procedural
trends followed in subsequent ICJ proceedings.
Contents
[hide]

1 Corfu Channel incident

2 Case history
o

2.1 Preliminary objection

2.2 Merits case

2.3 Merits judgment

2.4 Determining compensation

3 Fulfillment of the judgment

4 Legacy

4.1 Law of the sea

4.2 Use of force

4.3 International environmental law

4.4 Procedural legacy

5 See also

6 Notes

7 Citations

8 References

9 Further reading

9.1 Theses

9.2 Judgment summaries

10 External links

Corfu Channel incident[edit]

Main article: Corfu Channel incident

"[The] narrowness of the Corfu Channel and rocky shallows north of the island effectively pushed ships to the edge of
Albania's maritime border, occasionally over the line, sometimes to within a mile of shore. Given the Albanian defenses, the
tensions prompted by their increasingly anti-Western ruler and a British government eager to reassert a strong naval role in
the region, a clash was perhaps inevitable."

Delgado (2014, p. 36)

In 1946, during the Greek civil war, a series of three encounters took place in the Corfu Channel, between
Albania and the United Kingdom.
On 15 May, the cruisers Orion and Superb passed through the northern part of the Corfu Channel. Albanian
shore batteries opened fire on the two ships, coming within 200 yards (180 m) of the squadron, but striking
neither vessel.[1] The United Kingdom lodged a formal protest, demanding an apology from Albania. Albania
stated that the ships had violated Albanian territorial waters, and asserted that passage through the Corfu

Channel required Albanian permission. On 2 August, the United Kingdom stated that Royal Navy ships would
return any fire in the future.
On 22 October, a Royal Navy flotilla composed of cruisers Mauritius and Leander, and
destroyers Saumarez and Volage, entered the Corfu Channel. The ships were at Action Stations, with orders to
return fire if they were attacked. Their Guns were not loaded, and were in a neutral positiontrained fore and
aft, rather than aimed at the shore.[a] At 2:53 p.m., Saumarez struck a mine and was heavily damaged; thirty-six
people aboard were killed. The Volage took her in tow, only to strike another mine at 4:16 p.m.; eight people
were killed. A total of forty-four people died and forty-two others were injured, and the Saumarez was damaged
beyond repair.[2] Shore batteries in the vicinity were observed by the ships, but neither side took any action. At
one point, a boat flying an Albanian ensign and awhite flag approached the Volage to ask what the ships were
doing.[3]

HMS Volage lost her bow as a result of striking a mine in the Corfu Channel while towing the HMS Saumarez, which had
also struck a mine not long before.

On 12 and 13 November, the Royal Navy undertook a mine clearance operation in the Corfu
Channel, Operation Retail, which took place in Albanian territorial waters without advance permission from that
country. Subsequently, the Albanian government formally complained to the United Nations, describing the
operation as an incursion into Albanian territorial waters.
On 9 December, the United Kingdom demanded reparations from Albania. [4] Albania denied involvement in the
laying of mines, blaming Greece.[5] In January 1947, the United Kingdom attempted to involve the United
Nations Security Council. The Soviet Union objected, but the Security Council heard the British complaint. [6] A
fact-finding committee consisting of Polish, Australian and Colombianrepresentatives reached no conclusions
despite ten meetings.[7] A Soviet veto, supported by Poland, blocked a resolution that would have accused
Albania of indirect responsibility for the minefield. [8] The Security Council passed a resolution on 9 April 1947,
with the Soviet Union and Poland abstaining, recommending that the United Kingdom and Albania resolve the
dispute in the International Court of Justice. [9] This recommendation was made pursuant to Article 36,
paragraph 3 of the United Nations Charter.[10] On 22 May, the United Kingdom brought suit against Albania.
[11]

The ICJ, being permanently in session, was available to begin hearing the case immediately. Despite having

a long backlog of matters for consideration, such as a request for an advisory opinion on Article 4 of the United
Nations Charter, the Corfu Channel case was considered first. [12][13]

Case history[edit]
When the first awkward tussle before the Security Council ended at Lake Success, it might have been thought, by a novice
in such affairs, that every aspect of the situation and every shade of opinion had already been weighed and sifted and taken
account of; that the decision, to recommend Albania and the United Kingdom to take their quarrel to the International Court,

was for a mere formal pronouncement of guilt or innocence, in an atmosphere of judicial calm, undisturbed by political
considerations, uncorrupted by nationalistic and ideological threats and sulks. So one might have thought.
Gardiner (1966, p. 195)

The United Kingdom submitted its application to the ICJ on 22 May 1947. The submission was made without
any prior negotiation with Albania to reach a special agreement. The jurisdiction of the ICJ over the matter was
claimed under Article 36, Paragraph 1 of the ICJ Statute.[14][15] The United Kingdom was initially represented by
then-attorney general Hartley Shawcross, who had been chief prosecutor for the United Kingdom at
the Nuremberg trials. Eric Beckett, legal counsel for the Foreign Office, was also a major member of the legal
team, while additional support came from Hersch Lauterpacht, Humphrey Waldock, Richard Wilberforce, J.
Mervyn Jones and M. E. Reed.[16]
Albania submitted a letter to the Court on 2 July, which partially accepted the Security Council's
recommendations.[17][18] The lead counsel for Albania was Pierre Cot, then a Radical deputy in
the FrenchNational Assembly.[16] In late July, the president of the Court issued an order setting the deadlines for
each party's submission of memorials. While the United Kingdom adhered to this deadline, Albania instead filed
an objection to the application.[19]

Preliminary objection[edit]

Convened in the historic courtroom of the monumental Peace Palace at The Hague, where more than seventy cases were
handled by the Permanent Court of International Justice between World Wars I and II, the judges of the present Court, in
black gowns and white lace bibs, were confronted at the outset with a challenge of its jurisdiction to hear the case and
render a judgement.

American Bar Association Journal (1948, p. 398)

In the objection filed on 9 December,[19] Albania argued that a special agreement was the only valid way that the
case could be brought.[20] The objection stated that when at least one party was a state that was not otherwise
bound to submit to the Court's jurisdiction, proceedings could only be instituted by special agreement. Albania

cited Articles 26(1) and 40(1) of the ICJ Statute in its support, and stated that no such agreement had been
reached. In contesting the claims of the UK, the Albanian objection stated that the Security Council resolution
was not itself enough to compel Albania to accept the jurisdiction of the Court. It also said that Albania's
acceptance of the obligations of a UN member state did not constitute express acceptance of jurisdiction under
the ICJ Statute.[21] After the initial statements, Shawcross was replaced as the representative of the UK by thensolicitor general Frank Soskice.[16]
The ICJ delivered its judgment on the objection on 25 March 1947, voting fifteen-to-one, with Igor Daxner
Albania's designated ad hoc judgebeing the sole dissenter. The majority held that Albania had voluntarily
submitted to the jurisdiction of the International Court.[20] Specifically, two successive pieces of correspondence
were held to have established Albania's informal submission to the Court's jurisdiction: the British transmission
of the application to Albania, followed by the Albanian letter to the Court. These documents established
jurisdiction ratione personae and ratione materiae.[22] An important factor in this decision was the fact that the
Albanian letter had not been produced by Albania's Agent, but by the Deputy Minister of Foreign Affairs. [23] In a
separate opinion, while concurring with the majority that Albania had voluntarily submitted to the Court's
jurisdiction, Judges Basdevant, lvarez, Winiarski, Zorii, de Visscher, Badawi, and Krylov argued that the
Security Council's Article 36 recommendation did not place the case within the compulsory jurisdiction of the
Court.[24]
Another issue the Court addressed was the difference between the rules governing the institution of
proceedings and jurisdiction. Albania's objection assumed that proceedings could only be instituted where
compulsory jurisdiction existed or where a special agreement had been reached. In essence, to institute
proceedings the party applying to the Court needed only to plead as far as possible the basis of jurisdiction,
and not to establish it absolutely.[25]
After the judgement, the parties submitted a special agreement in open court [26] certifying two questions:
Whether Albania was responsible for the incidents, and whether the United Kingdom violated Albanian
sovereignty.[20] The Court accepted the special agreement as the basis for all further proceedings in the case on
26 March.[27] Additionally, the parties requested that the Court continue the consecutiveas opposed to
simultaneouspleading format. The Court agreed to this.[28]
Following the decay of relations between Albania and Yugoslavia in 1948, the Yugoslavian members of Cot's
legal team were replaced by French barristers Joseph Nordmann,Marc Jacquier and Paul Villard. These three
were respected members of the French bar and affiliated with the French Communist Party. Nordmann had
also been involved in the French prosecution team during the Nuremberg trials.[16]

Merits case[edit]

The British legal team

The merits phase began on 9 November 1948. The written pleadings phase has been described as concise by
modern standards. The United Kingdom filed some 87 pages of pleadings, while Albania filed 74 pages. The
oral proceedings were much more extensive, covering over one thousand pages. [29]
At one point, Yugoslavia desired to submit evidence, but without intervening in the case. This was in response
to the British argument that Yugoslavia and Albania had worked together in mining the Corfu Channel, and the
presentation of evidence from Karel Kovacic,[30]a former officer of the Yugoslav Navy.[31] On 8 November 1948,
Yugoslavia transmitted a communiqu to the Court arguing against Kovacic's credibility and denying any
complicity in the mining. Yugoslavia also passed documentary evidence to Albania, which the Agent for Albania
filed; while these were not admitted as evidence, an agreement with the United Kingdom permitted them to be
used to examine a witness.[31]
An important matter involved a Royal Navy document, referred to as XCU, [32][33] which comprised the sailing
orders issued to the flotilla on 22 October.[34] XCU was a memorandum dated 5 October 1946,[35] and signed by
then-Rear Admiral Harold Kinahan.[36] In an admiralty document submitted as part of a United Kingdom
memorial to the ICJ, there was a reference to XCU. As a result of this reference, Albania requested the ICJ
order the production of XCU, a request which the Court accepted. [34] The ICJ invoked Article 49 of its statute to
order production of XCU.[37] According to Anthony Carty, this support for Albania's claim came as a surprise, and
Shawcross had not at that point examined the sailing orders. The document posed a problem for him:
Shawcross believed it worked against the innocent passage argument.[34]The consensus of the advisers was
that XCU might be interpreted as evidence of hostility on part of the UK. The Admiralty argued that the Court
should examine the actions of the flotilla on the day in question, rather than, as Carty describes, "the confused
and contradictory expressions of the British Administration through such documents as XCU". [38]Citing national
security, the Agent for the United Kingdom refused to produce XCU.[39] In its merits judgment, the Court
generally accepted the Admiralty's argument,[38] holding that the refusal could not lead to "any conclusions
differing from those to which the actual events gave rise".[40] In the decades following the case, XCU and related
documents were declassified.[34]
The witness phase took three weeks, during which the United Kingdom called seven witnesses, while Albania
called three.[41][b] Witness and expert[c] examinations generally followed the common law system, with direct
examination, cross-examination and redirect examination. This phase of the proceedings was also
characterized by flexibility on the part of the Court, with a view to the novelty of the entire situation. On one
occasion, the Court allowed recross examination. The Court itself asked questions of some witnesses, almost
always between the conclusion of cross-examination and the beginning of redirect examination. On one
occasion, the ad hoc judge asked a question of an expert witness between direct and cross-examination; the
Court and the parties agreed that the question would instead of submitted in written form to the joint panel of
experts. Examinations were primarily conducted in English and French, with interpreters where necessary.
[42]

During the Albanian cross-examination of Kovacic, the Court had to rule on an objection regarding whether

a photostatic copy of a document was admissible as evidence. The Court ruled that the original document
needed to be produced, though it confined its ruling to the individual document. A subsequent evidentiary
dispute was similarly resolved solely with respect to the disputed documents, without having an effect on

precedence.[43]The examination phase was comparatively long, requiring twenty sittings of the Court, compared
to fifteen sittings for the two rounds of pleadings.[42]
In a 1948 order, the ICJ called for the assembly of a committee of experts in accordance with Articles 48 and 50
of the ICJ Statute.[44] Such a committee had been assembled just once before, in the Chorzw Factory case.[d]
[45]

This committee consisted of one naval officer each from the Royal Danish Navy, the Royal Norwegian

Navy and the Swedish Navy. They were formally appointed by an ICJ order on 17 December.[46] They were
accompanied by the Deputy-Registrar of the ICJ, as well as officers of the Royal Navy and the Albanian Naval
Force.[47] After the committee submitted its first written report, the ICJ decided to request an on-the-spot enquiry.
[48]

Yugoslavia also participated in this phase by giving assistance to the committee of experts. [49]

Merits judgment[edit]
In 1949, the ICJ issued its merits judgment, ruling partly in favour of Albania and partly in favour of the United
Kingdom. The Court held that the United Kingdom did not violate Albanian territorial waters on 22 October 1946
when the four-ship flotilla transited the parts of the Corfu Channel that were within Albanian territorial waters.
[50]

The Court's decision was based on its determination that the character of an international strait was

determined by its connection of two parts of the high seas, and that the strait was used for international
navigation.[51] The burden of proof had rested on the United Kingdom, as it had been the applicant. [52]
On the question of innocent passage, the Court found in favor of the United Kingdom, voting fourteen to two.
[53]

Notably, the Court held that a right to innocent passage existed during times of peace through straits like the

Corfu Channel, which connected two parts of the high seas. The Court accepted that some Albanian regulation
of passage through the Channel would have been acceptable, but not to the extent of demanding prior
authorization, or of barring the passage of warships outright. This served to clarify the 1930 Hague
Conference with respect to international straits. Bing Bing Jia stated that this decision meant that in peacetime,
a country could not prohibit the passage of all vessels, or otherwise require authorization. Jia goes on to argue
that, because Albania was unable to rapidly distinguish between the passage of Greek and other vessels
during times of high political tensions, the requirement of prior notification could be lawful. [54]

While finding Albania responsible for the mining of the two ships, the Court held that the subsequentOperation Retail was a
violation of international law.[55]

With respect to the minefield itself, the Court rejected the British contention that Albania had laid it, stating that
such a claim was not credible: at the time, Albania lacked the capacity for such operations. The Court also
rejected the Albanian argument that Greece might have been responsible, as well as the claim that the mines

had been laid after 22 October, as being nothing more than conjecture. The Court stated that it did not need to
determine who had placed the mines: given that they were in Albanian territorial waters, and that the evidence
placed the minelaying activity at a recent time, during which Albania was known to have high levels of security.
Thus, the Albanian government would have had knowledge of any minelaying operations in the Corfu Channel,
and as such, had a responsibility to notify other states of the navigational hazard they presented. [56]
One commentator has noted that the Court's approach to the British claims illustrated how the standard of
proof in the ICJ differed foractions versus omissions. The United Kingdom had alleged that Albania had laid the
mines, or alternatively, that Albania and Yugoslavia had colluded in laying the mines. It also alleged that
Albania's failure to warn ships of the danger of the minefield constituted an omission that affected the rights of
other states: specifically, the right of innocent passage. With respect to the claim of Albanian-Yugoslav
collusion, the United Kingdom could not provide direct evidence either of collusion or of who had actually laid
the mines.[57] For the collusion, the Court demanded "a degree of certainty", while to establish the omission, the
Court demanded that there be "no room for reasonable doubt" that Albania had knowledge of the minefield.
While the latter standard seems like it should be higher, it was capable of being satisfied by indirect evidence.
[58]

Another commentator has noted that despite finding that the British sweeping of the Corfu Channel

constituted a violation of international law, the Court did not rule that indirect evidence inadmissible. However,
this may have been because Albania never challenged the evidence. [59]
In rejecting the British argument that Operation Retail was a justified intervention, the Court famously
held[55] that such a right was "the manifestation of a policy of force, such as has, in the past, given rise to most
serious abuses and such as cannot, whatever be the present defects in international organization, find a place
in international law".[60] The Court also rejected the British arguments that Operation Retail was justified as selfprotection or self-help,[55] holding that "respect for territorial sovereignty is an essential foundation of
international relations".[60] While the Court found that Albania's conduct in the wake of the mining constituted
extenuating circumstances for the United Kingdom, that conduct did not validate Operation Retail.[55]
In a separate opinion, Judge lvarez argued that warships were not entitled to innocent passage except where
such passage was to take part in a UN enforcement action. Judge Krylov's dissenting opinion argued that there
was no customary international law allowing passage, and that straits could be regulated by the coastal state.
JudgeAzevedo also dissented, arguing that territorial seas within international straits were treated the same as
any other territorial seas, but that a special regime was needed for international straits. [61]

Determining compensation[edit]
The Court declined to rule on compensation during the merits phase, because Albania had not indicated what
portion, if any, of the damages claimed by the United Kingdom it intended to dispute. [62] During the pleadings,
the United Kingdom argued that the jurisdiction to award damages was a matter of res judicatait had already
been decided by the ICJ. Article 36, paragraph 6, and Article 60 of the ICJ Statute, taken with the merits
judgment, served to grant the ICJ jurisdiction.[63]
Albania did not participate in the written or oral portions of the compensation proceedings, though late in the
proceedings requested that a change be made; the Court refused this, holding that Albania had waived the
right to make new assertions.[64] Albania's non-participation was because it challenged the ICJ's jurisdiction to
award damages.[63] This refusal to participate resulted in the Court applying Article 53 of the ICJ Statute, [65] to
appoint experts to evaluate the British claim.[66] The ICJ itself appointed the committee of experts, consisting of

two officers of the Royal Netherlands Navy. This committee examined data relevant to the calculations of
compensation, which was ultimately annexed to the compensation judgment. [67]
Because Albania did not participate any further in the compensation proceedings, the United Kingdom was
awarded judgment by default on 15 December 1949, with the court accepting the argument that the question of
its jurisdiction was res judicata under Article 60.[63] Shabtai Rosenne remarked on the ICJ's non-reliance on
Article 36, paragraph 6 of the ICJ Statute, noting that this was not explained in its judgment. He argues that the
ICJ wanted it clear that its judgment was because Albania defaulted, and because the merits decision was res
judicata, not that the matter of whether the ICJ had jurisdiction to award damages at all was res judicata.[68] The
Court, furthermore, held that the special agreement gave it the power to determine whether compensation was
appropriate, and therefore the power to fix the amount of compensation. Mohammed Bedjaoui notes that this
principle was borrowed from the Chorzw Factory.[69]

External images
Original Corfu Channel (Compensation) judgment, including ICJ
wax seal.

The ICJ ordered Albania to pay the UK843,947 in compensation. [70] This is equivalent to 23.7 million in
present-day terms.[71]Broken down, this represented 700,087 for the loss of the Saumarez, 93,812 for
damage to the Volage and 50,048 for the casualties. The award for the Saumarez had been limited by
the non ultra petita rule, whereby the Court could not award more than what had been claimed. [70] As of 2012, it
was the only case in which the ICJ made an award in the form of liquidated money to a state applicant. [72]

Fulfillment of the judgment[edit]

The Tripartite Commission for the Restitution of Monetary Gold was formed to handle the myriad claims stemming from the
discovery of Nazi gold. Albania had one such claim.

The judgment against Albania remained unsettled for decades. In negotiations that took place during the
summer of 1950, Albania offered 40,000 to settle the claim of the United Kingdom. [73] This is the equivalent of
1.12 million in present-day terms.[71] In January 1951, the United Kingdom rejected this offer.[73] Settlement talks
subsequently broke off.[74] Authorities in the United Kingdom then looked to the possibility of seizing Albanian

property in the United Kingdom. This failed because there was no such property under United Kingdom
jurisdiction.[75]
The United Kingdom then looked to an Albanian claim for 2,338.7565 kilograms (5,156.075 lb; 75,192.77 ozt)
of Nazi gold that had been looted from an Italian vault in 1943. The Tripartite Commission for the Restitution of
Monetary Gold, of which the United Kingdom is a member, formed an agreement on 25 April 1951 in
Washington, D.C., whereby it requested the President of the ICJ to appoint an arbitrator to resolve the
competing claims of Italy and Albania as to the status of the gold. [75] In requesting arbitration, the Tripartite
Commission issued the Washington Statement, in which it stated that should the arbitrator grant Albania's claim
under Part III of the Final Act of the Paris Conference on Reparations, the gold would be granted to the United
Kingdom to partially satisfy the Corfu Channeljudgment.[74] On 20 February 1953, the arbitrator granted
Albania's claim.[75] This did not end the issue: Italy asserted claims to the gold that were not covered by Part III
of the Final Act.[74] These additional claims gave rise to a new ICJ case, Monetary Gold Removed from Rome in
1943,[76] which Italy commenced on 9 May 1953.[77] This case was dismissed on jurisdictional grounds on 15
June 1954, and the gold remained in a vault in London under the Tripartite Commission's name. [78]
Final settlement did not take place until the 1990s, after the end of socialism in Albania. The United Kingdom
and Albania reached an agreement on 8 May 1992 whereby the United Kingdom would grant to Albania some
1,574 kilograms (3,470 lb) of Tripartite Commission gold, and Albania would pay $2 million to the United
Kingdom.[79] The settlement was finally approved in 1996, after Albania and the other Tripartite powers settled
their own claims.[80] At this point, Albania asserted that it was unable to pay the $2 million. Later in 1996, Albania
paid the $2 million, and the judgment was considered settled. This is equivalent to $3.01 million in present-day
terms.[81]

Legacy[edit]
Armed only with the jurisprudence of its predecessor, this new International Court would successfully establish for the future
a whole range of procedural rules, as well as a foundation in a great number of areas, while fortuitously strengthening some
legal principles for the good of a world that was about to find itself in a period of strong ideological rivalry. It would even
boldly develop international law, notably within the area of environmental protection.
Bedjaoui (2012, p. 6)

Law of the sea[edit]

Further information: Law of the sea and Innocent passage
The Corfu Channel case has been called a landmark case in the law of the sea.[clarification needed] While the 1930
Hague Conference on International Law reached no consensus as to whether the right to innocent passage
through territorial seas existed for warships, Corfu Channel heralded a change of this regime.[82]
Corfu Channel was relevant at the seventh session of the International Law Commission (ILC), held in 1955.
[83]

The ILC ultimately submitted a draft provision to the 1958 United Nations Conference on the Law of the Sea

(UNCLOS I), providing that the right of innocent passage through international straits should not be suspended.
The ILC attributed their draft to the Corfu Channel merits judgment. The provision was adopted almost verbatim
at UNCLOS I into Article 16(4) of the Convention on the Territorial Sea and the Contiguous Zone,[84] but not
without significant debate as to how the merits judgment should be interpreted with respect to warships. The
Convention's provision contained no reference to "warships", but Jia argues that the remainder of Article 16

make it clear that Article 16(4) could not be read to allow the coastal state to require prior authorization, and
that otherwise UNCLOS I aligned with the merits judgment.[85]
Innocent passage, along with transit passage, was integrated into the 1982 United Nations Convention on the
Law of the Sea (UNCLOS), which supserseded the Convention on the Territorial Sea and the Contiguous Zone.
[82]

Use of force[edit]
Further information: Use of force by states and Nicaragua v. United States

Nicaragua v. United States, which partly dealt with the United States support of Contras in Nicaragua, is another
International Court of Justice case involving the use of force.

Before the formation of the United Nations, cases involving the use of force were considered unsuitable for
adjudication. Since Corfu Channel, the Court had rendered merits judgments in three use of force
cases: Nicaragua v. United States in 1986, the Oil Platformscase in 2003, and Armed Activities on the Territory
of the Congo in 2005. Many others have been brought before the Court, though these others did not result in
decisions. Historically, the ICJ's stance has been to strictly enforce the prohibition on the use of force, a stance
which has proved controversial.[86]
In deciding Albania's claim that the United Kingdom violated Albanian sovereignty with Operation Retail, the
Court rejected the British argument that its activities in Albanian territorial waters were justified as necessary to
obtain evidence of the minefield in the Corfu Channel, as well as that it was justified as self-help or selfprotection. Some controversy surrounded the majority decision, which did not specifically reference the UN
Charter's prohibition on the use of force, but simply held that the United Kingdom violated the sovereignty of
Albania. In subsequent cases involving use of force, Christine Gray has noted that the Court has similarly
avoided specifically referencing the UN Charter in its final pronouncements. [87]
The Court has subsequently held that the UN Charter prohibition on the use of force constituted customary
international law. In theNicaragua case, the parties were in agreement that the prohibition constituted
a peremptory norm, or jus cogens. In this case it was also held that the right of self-defence, in response to an
illegal use of force, has a dual basis in international law - both under customary international law and that
derived from Article 51 of the UN Charter. The practices of states have generally conformed to the Court's
approach in the Corfu Channel case.[88] The United States has criticized the Court's approach to the use of
force. The United States' criticism flows from the fact that, even owing to the use of force against Al-Qaeda in

Afghanistan, and the acceptance of the legality of such action, the ICJ still maintains the position that non-state
groups cannot commit an 'armed attack'. An occurence of an 'armed attack' is the necessary condition for a
state to use the right of self -defence in response to an ilegal use of force, and thus breach the territorial
sovereignty of a state. [clarification needed][89]
As to the law of war, or jus in bello, the Corfu Channel case merits decision made reference to the concept, but
only when the Court judged the Nicaragua case the ICJ give a significant treatment to the topic.
The Permanent Court of International Justice had never dealt with jus in bello.[90] In both cases, the ICJ dealt
with situations involving force, but which did not rise to the level of a formal state of war.[91]

International environmental law[edit]

Further information: Environmental protocol
[T]he relevance of this judgment goes far beyond the subject matter dealt with by the Court in 1949, extending to pressing
contemporary problems such as trans-boundary pollution, terrorism or piracy. In short, it was and remains a thoroughly
modern decisiona landmark for international law; and one which today warrants reconsideration.
Bannelier, Christakis & Heathcote (2012, p. xv)

Although Corfu Channel was superficially a decision about the law of the sea and the use of force, scholars
such as Malgosia Fitzmaurice have remarked on the impact of Corfu Channel on the development of
international environmental law. Specifically, the case, along with the 1930s arbitration from the Trail Smelter
dispute and the subsequent ICJ case involving Barcelona Traction, articulated basic principles used extensively
in subsequent cases and conventions dealing with the environment. In the Corfu Channel case, the Court
articulated the principle that every state is obligated not to knowingly allow its territory to be used to commit
acts against the rights of any other state. This meant, with respect to the Corfu Channel, that Albania was
obligated to warn others that its territorial waters were mined. The specific language came from the Trail
Smelter case, and ultimately was adopted into the Stockholm Declaration and Rio Declaration.[92]

Procedural legacy[edit]
See also: United Nations Charter and Statute of the International Court of Justice

Corfu Channel has impacted the procedure of the International Court of Justice in subsequent cases.

According to Aristotles Constantinides, one of the major reasons the Corfu Channel case has continued to be
of importance in current public international law has to do with the standards it established in the evidentiary
and fact-finding portions of the case.[93] For instance,Corfu Channel differed from other cases in the Permanent
Court in that witnesses, both expert and non-expert, were available during the oral proceedings for crossexamination, as well as for questioning by the judges. Shabtai Rosenne comments that because the British
"took the initiative to call witnesses", it was the British procedure for witness examination that the Court

adopted in that case, and which has been roughly followed in all subsequent contentious cases. [94] The use of
circumstantial evidence also derives from Corfu Channel.[95] According to Christian Tams, the academic
consensus is that the Court successfully resolved the evidentiary issues before it. [96]
Corfu Channel also started a trend in the ICJ where states appointing judges ad hoc would not choose one of
their own nationals to fill the role. This subsequently happened in the Aerial Incident of 27 July
1955 and Arbitral Award of the King of Spain cases, among others. In the 1978 Rules of Court, Article 35
paragraph 1 was intentionally drawn up to encourage this practice. [97] It was also the beginning of a trend where
the ICJ's final decisions occasionally consisted of more than one judgment. [98]
Corfu Channel has been an outlier in terms of how the case reached the ICJ. The UN Charter, Article 36(3),
provides that the Security Council may recommend cases for settlement by the Court. Corfu Channel has been
the only time the Security Council has openly relied on that authority (via Resolution 22). Christian
Tomuschat has argued thatResolution 395, issued with respect to the Aegean dispute, and which resulted in
the Aegean Sea Continental Shelf case, is a veiled invocation of that same power.[99] In two other situations, the
Security Council has considered making an Article 36(3) recommendation, only to have it defeated by vote or
veto.[100] Additionally, Corfu Channel is unusual in that the expert testimony was considered in the judgment. [101]
Some procedural issues decided in Corfu Channel have been subsequently superseded. At that point, the rule
with respect to experts providing testimony to the Court required that the party calling the expert should pay
their expenses. This has since been supplanted by Article 68 of the Rules of the ICJ, which provides that the
Court's own funds pay for experts.[102] Corfu Channel also carried over the PCIJ practice of asking the parties'
consent prior to resuming proceedings with a judge who had been temporarily absent; this practice was
eliminated in 1953.[103] The case was also the first and final instance where the PCIJ practice of reading
separate opinions aloud before the court was followed. The practice of publicly reading decisions was
eliminated entirely after the case.[104]
Corfu Channel (United Kingdom v. Albania)
Date of Application: 22 May 1947
On 22 October 1946 in the Corfu Strait, two British destroyers struck mines in Albanian waters and suffered damage, including serious loss
of life. On 22 May 1947, the Government of the United Kingdom filed an Application instituting proceedings against the Government of the
People's Republic of Albania seeking a decision to the effect that the Albanian Government was internationally responsible for the
consequences of the incident and must make reparation or pay compensation. Albania, for its part, had submitted a counter-claim against
the United Kingdom for having violated Albanian territorial waters. On 9 April 1949, the Court found that Albania was responsible for the
explosions and for the resulting damage and loss of human life suffered by the United Kingdom. The Court also found that the later
minesweeping by the United Kingdom had violated Albanian sovereignty. On 19 December 1949, the Court ordered Albania to pay the United
Kingdom a total compensation of 843, 947.
The Corfu Channel case was the first dispute to be brought before the newly established International Court of Justice - the successor to the
Permanent Court of International Justice.

International law[edit]
Main article: Corfu Channel case
The International Court of Justice ruling in the case established a precedent regarding
whether a violation of territorial sovereignty is justified intervention. The United Kingdom
claimed it was justified in entering Albanian territorial waters on 12 and 13 November
1946 to secure evidence needed to support its case. The ICJ responded,
"The Court cannot accept such a line of defence. The Court can only regard the
alleged right of intervention as the manifestation of a policy of force, such as has,
in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in
international organisation, find a place in international law. Intervention is perhaps still less admissible
in the particular form it would take here; for, from the nature of things, it would be reserved for the most
powerful States, and might easily lead to perverting the administration of inter-national justice itself.
The United Kingdom Agent, in his speech in reply, has further classified "Operation Retail" among
methods of self-protection or self-help. The Court cannot accept this defence either. Between
independent States, respect for territorial sovereignty is an essential foundation of international
relations. The Court recognises that the Albanian Government's complete failure to carry out its duties
after the explosions, and the dilatory nature of its diplomatic notes, are extenuating circumstances for
the action of the United Kingdom Government. But to ensure respect for international law, of which it is
the organ, the Court must declare that the action of the British Navy constituted a violation of Albanian
sovereignty."[29]