The ICJ and the Evolution of International Law

The Enduring Impact of the Corfu Channel Case

Karine Bannelier, Théodore Christakis, Sarah Heathcote, Karine Bannelier, Théodore Christakis, Sarah Heathcote

• Publisher: Taylor & Francis
• Year: 2012
• Print ISBN: 9780415870191
• eBook ISBN: 9781136619304
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

In 1949 the International Court of Justice (ICJ) handed down its first judgment in the Corfu Channel Case. In diffusing an early Cold War dispute, the Court articulated a set of legal principles which continue to shape our appreciation of the international legal order. Many of the issues dealt with by the Court in 1949 remain central questions of international law, including due diligence, forcible intervention and self-help, maritime operations, navigation in international straits and the concept of elementary considerations of humanity. The Court's decision has been cited on numerous occasions in subsequent international litigation. Indeed, the relevance of this judgment goes far beyond the subject matter dealt with by the Court in 1949, extending to pressing problems such as trans-boundary pollution, terrorism and piracy. In short, it was and remains a thoroughly modern decision — a landmark for international law; and one which today warrants reconsideration.

Taking a critical approach, this book examines the decision's influence on international law generally and on some fields of international law like the law of the sea and the law of international responsibility specifically. The book collects the commentary of a distinguished set of international law scholars, including four well-known international judges. The contributors consider not only the history of the Corfu Channel Judgment and its contribution to the development of international law, but also its resonance in many contemporary issues in the field of international law.

This book will be of particular interest to academics and students of International Law, International Relations and Legal History

Part I

Views from the Bench

The legacy of the Corfu Channel case

1 An international contentious case
on the threshold of the Cold War^*

Mohammed Bedjaoui

I recall, once more, that formula from British Admiralty: ‘to learn to behave oneself’. All nations, Mr. President, large and small, strong and weak, must learn to behave themselves. They must learn by looking to the International Court of Justice which, in its wisdom, can teach them how.

(Concluding words of Pierre Cot in his oral pleadings as Counsel on behalf of Albania, January 22, 1949)¹

I am very grateful to the editors of this book on the Corfu Channel case, whose topicality, some sixty years after the event, remains relevant today. It provides me with an opportunity, which is greatly appreciated, to reread after a long time, the three judgments to which this dispute gave rise and to rediscover with delight, the well-established merits of these historical decisions.

1.1 Tense exchanges in the Security Council

To learn the most from this case, one needs to recall its context: the Cold War was just beginning. At this war's frontline, in the months of February to April 1947, the superpowers were already vigorously flexing their muscles. To my mind, the moment when the Corfu Channel dispute first went before the Security Council was integral to the legal history of what was already a set of tense exchanges between the superpowers. The Security Council was in its very first year of existence. This case was the first and last time that this central organ of the United Nations would recommend that two States refer their dispute to the International Court of Justice to resolve their differences. Sir Alexander Cadogan, the Permanent Representative of the United Kingdom to the United Nations in New York, used modern – and today fashionable – terminology, when he accused Albania, in a failed draft resolution, of having committed a crime against humanity by not having told States that a danger existed in navigating the Channel which was awash with naval mines. In these words one can hear the first echoes of present-day international criminal law. But the Corfu Channel case would also distinguish itself at this point by being the first time that the veto was used. This highly ranked British diplomat, disappointed to see his proposed resolution crushed by a Soviet veto, rashly remarked that its use was regrettable.² This was an unexpected criticism of a use of the right of veto by one of its holders. Andrei Gromyko's was delighted. Savouring the poignancy of the moment, he reminded Cadogan that it was in fact the United States and the United Kingdom that had first suggested that a right of veto be included in the United Nations Charter. It was then the turn of the Colombian Representative to remind the Council that it was due to the obstinacy of the superpowers that this mechanism was introduced and locked into the system.³

1.2 A perfect trial

But the Corfu Channel case also has a number of other distinguishing features. First, it was the first contentious case to be officially filed with the newly created International Court of Justice,⁴ which was also taking its first steps. It is, above all, a case in which a jurist can find all the different possible facets of a contentious case: a first set of hearings where the Court's jurisdiction is questioned, resulting in a first judgment (dated March 25, 1945) rejecting the preliminary objection raised by a contesting party; a second set of hearings in which a detailed examination is undertaken and which is concluded by a second judgment (dated April 9, 1949); and finally a third set of hearings focused on the assessment of the amount of compensation for the injury sustained by a party, which resulted in the judgment of 15 December, 1949.⁵ The case is in this respect valuable, for it constitutes what can be called a ‘comprehensive’ or ‘complete’ case.

The unique nature of the case is not, however, limited to these features. Albania, having contested the International Court's jurisdiction to set the amount of compensation, refused to appear for the third set of hearings. Consequently, the Court applied, and this too would be ‘a first’, the procedure by default found in Article 53 of the Statute.⁶ Perhaps because it was the Court's first case, it felt obliged to handle the case's ‘every aspect’.

1.3 A memorable year

The year in which the Court handed down its final judgment in the Corfu Channel case distinguishes itself from others. In the Court's history, ‘the vintage year of 1949’ is to be remembered. Indeed, the Court prospered throughout the course of the whole year. With its General List successfully full, the Court could have been but delighted with promise of productivity, which boded well for the fulfillment of its mission of legal activity of the highest order. The Court was far from envisaging the long, miserable and barren years to come. At this point, it could savour its moment of full and prolific activity, as in that single year of 1949 it was able to hand down no less than 12 judgments!⁷

1.4 In record time

Another feature of the Corfu Channel case is that it reflects a perfect example of the meticulous processing of a case by the Court in optimum time. Beginning with a notice of unilateral application by the United Kingdom against Albania on 22 May, 1947, the case finished on 15 December, 1949, thus lasting a mere two and a half years. What is all the more striking concerning this short processing period is that the case produced three judgments: the first relative to jurisdiction, the second on the merits, and the last on compensation. Moreover, the case generated, during the period of written proceedings, an exhaustive exchange of written documents, both parties having submitted Memorials, Counter-Memorials, written Replies and Rejoinders; the amount of documents being the same for the first judgment as for the second. This all-inclusive case additionally required the opinions of witnesses and experts, and even the participation of a third State in proceedings, participating as a kind of amicus curiae.

1.5 A bounty of solutions

Richly endowed in all the above features as well as in many others, the Corfu Channel case, on which the International Court of Justice cut its teeth, would provide this court of law with an opportunity to issue solutions, which would subsequently prosper, both in respect of procedure and indeed in terms of substantive law. Built as it was, the case would challenge the judges’ acumen on a number of significant problems. 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.

1.6 A benchmark for jurisprudence

The new Court, placed by benevolent Providence on such a perfect launching pad, could not wish for better tools with which to begin in style a very promising career. The solutions it developed for the resolution of the ‘Corfu Case’ gained the seal of approval and became the benchmark for later jurisprudence. In no less than 18 cases, did the Court continue to be influenced by the Corfu Channel case.⁸ The solutions provided in this case particularly influenced the Court's decisions in the case concerning Military and Paramilitary Activities (Nicaragua v. USA), twice for the Jurisdiction and Admissibility phase of the case and at least six times for the Merits phase. In the Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro), the jurisprudence of the Corfu Channel case was followed at least four times.⁹

1.7 Instituting proceedings on several levels

The distinctive features of the Corfu Channel case can also be found in the area of the institution of proceedings at the International Court of Justice. The case was introduced to the Court using different means, as if in this first case, the World Court was trying to test all the possible grounds for jurisdiction foreseen by its Statute. In this way the Corfu Channel case offered a preview of all the different problems concerning the Court's jurisdiction.

The United Kingdom brought the case before the Court by unilateral application, thinking that in this way it was complying with the Security Council's recommendation that the two States refer their dispute to the International Court of Justice. What once again singles out the Corfu Channel case was that this was the first and last time that the Security Council would decide to use this highly appropriate mechanism to push disputing parties towards the International Court. This strategy of submitting a unilateral application was very much connected to the mechanism of forum prorogatum : the United Kingdom expected that normally Albania would be even more willing to consent to the Court's jurisdiction as it was authorised to participate in Security Council debates on this case only on condition that it accept in advance all the obligations incumbent upon a Member State of the United Nations, and notably the obligation to carry out the Security Council's decisions.

Security Council recommendations, unilateral application by the United Kingdom, forum prorogatum, the list does not end there. In its letter dated July 2nd, 1947, Albania accused the United Kingdom of having acted unilaterally by filing an application, Albania considering that the case could only be introduced to the Court by way of a special agreement. Albania stated that the Security Council had put forward a simple recommendation and certainly not a ‘decision’ which would have been of a mandatory nature if it had been adopted under Chapter VII of the Charter. For Albania, the invocation of Article 25 of the Charter by the United Kingdom was incorrect in this particular case. The United Kingdom maintained that this case could constitute an example of compulsory jurisdiction.

The Court specified that, be that as it may, Albania had nevertheless not rejected the Security Council's recommendation in its letter dated July 2nd, 1947. Avoiding giving a ruling on the possibility of compulsory jurisdiction being used in this specific case, the Court declared that it had jurisdiction based on this Albanian letter.

At this point in the proceedings, the tone of the case had been set and would not wane. On the very day that the Court handed down its judgment on Albania's preliminary objection (March 25th, 1948) in which the Court stated with all the authority of res judicata that it had jurisdiction to hear the case, the two litigating parties, in all haste, filed a special agreement by which both States granted the Court jurisdiction to rule on two specific questions which summed up the issues of the case.

The multiple grounds of jurisdiction put forward in this first ‘historic’ case revealed how an international legal system based exclusively on ‘consent’ would always encounter State disagreements as soon as it appeared unlikely that a special agreement would be concluded by the parties. Some of the complexities of this highly sensitive question of jurisdiction, which today is at the centre of international justice, emerged in the Corfu Channel case, and sounded a warning of many others that would arise in the future. Did the Security Council's recommendation enable the parties to avoid the provisions of the Court's Statute concerning rules of jurisdiction? While clearly and correctly declaring that the Council resolution could only be implemented in strict compliance with the Statute, the Court put an end to any further debate, ruling that the Albanian letter date...

Table of contents

• Cover Page
• Half Title Page
• Routledge Research in International Law
• Title Page
• Copyright Page
• Contents
• List of contributors
• Preface
• PART I Views from the Bench: the legacy of the Corfu Channel case
• 1 An international contentious case on the threshold of the Cold War
• 2 The Corfu Channel case and the concept of sovereignty
• 3 The bar
• PART II The historical and institutional framework
• 4 The Corfu Channel case in perspective: the factual and political background
• 5 The International Court of Justice and the Security Council: disentangling Themis from Ares
• PART III Procedural and evidential issues before the World Court
• 6 The basis of the Court's jurisdiction and the scope and usefulness of forum prorogatum
• 7 The International Court of Justice and standards of proof
• 8 ‘Naval secrets’, public interest immunity and open justice
• PART IV Law of the Sea
• 9 International straits: still a matter of contention?
• 10 Dangerous waters and international law: the Corfu Channel case, warships, and sovereignty irritants
• 11 Peacetime maritime operations
• PART V Fundamental rules of international law
• 12 The Court's decision in silentium on the sources of international law: its enduring significance
• 13 Intervention and self-help
• 14 A policy of force
• 15 Foundational judgment or constructive myth? The Court's decision as a precursor to international environmental law
• 16 The interaction between international humanitarian law and human rights law and the contribution of the ICJ
• 17 Elementary considerations of humanity
• PART VI Issues of state responsibility
• 18 State omissions and due diligence: aspects of fault, damage and contribution to injury in the law of state responsibility
• 19 The limits of complicity as a ground for responsibility: lessons learned from the Corfu Channel case
• 20 Reparation and compliance
• 21 Conclusion
• Index