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THE CORFU CHANNEL CASE (PRELIMINARY OBJECTION)

FACTS:

In 1946 there was series of three encounters took place in the Corfu Channel,
between Albania and the United Kingdom.
On 15 May, two ships passed through the northern part of the Corfu Channel.
Albanian shore batteries opened fire on the two ships. 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 22 October, a Royal Navy flotilla 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 position—trained fore and aft, rather than
aimed at the shore At 2:53 p.m. one ship struck a mine and was heavily damaged
another 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.
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.

ISSUE:
Does the ICJ have jurisdiction over the case?

RULING:

The main objection of Albanian Government is that it 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.

In the objection filed on 9 December, Albania argued that a special agreement


was the only valid way that the case could be brought. 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. After the initial statements, Shawcross was replaced
as the representative of the UK by then-solicitor general Frank Soskice.
The ICJ delivered its judgment on the objection on 25 March 1947, voting
fifteen-to-one, with Igor Daxner—Albania's designated ad hoc judge—being the sole
dissenter. The majority held that Albania had voluntarily submitted to the jurisdiction
of the International Court. 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. 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.
After the judgement, the parties submitted a special agreement in open court
certifying two questions: Whether Albania was responsible for the incidents, and
whether the United Kingdom violated Albanian sovereignty. The Court accepted the
special agreement as the basis for all further proceedings in the case on 26 March.

OPINION:

The submission of Albanian Government to the Court’s ICJ should have taken
as a special appearance questioning the jurisdiction of the court. Should this
submission of the Albanian Government would automatically mean submission to the
authority of the ICJ over the merits of the case, it would then be impossible to question
the court’s jurisdiction considering that it is only the ICJ which can pass judgment on
this issue.