State Responsibility

Arechaga, International Law in the Past Third of a Century (1978) State responsibility occurs:

a) by a direct injury to the rights of another State; or

b) by a wrongful act or omission w/c causes injury to an alien. In this case, the responsibility is owed to the State of w/c the alien is a national.

Constituent elements:

1. Existence of an act or omission w/c violates an obligation established by a rule of IL in force between the State responsible for the act or omission and the injured State

2. The unlawful act may be attributed to the State as a legal person

3. Loss or damage must have resulted from the unlawful act. But in inter-State rel’ns even acts affecting the dignity of the State must be compensated by adequate reparation even if no pecuniary loss exist; damage is not a separate constituent element

The failure to fulfill an int’l obligation is necessary but not a sufficient element in the case of int’l delicts. To create an automatic link of responsibility between the acting and the claimant State, an additional condition [damage suffered by claimant State] is required. This requirement is connected with the 2ndary rules of State responsibility since it concerns its implementation on the diplomatic and judicial plane. It is always the element of damage suffered by one State that entitles that State to claim against another State w/c caused the damage and demand redress.

Cases:

Corfu Channel Case (1949)

On October 22^nd, 1946, two British cruisers and two destroyers, entered the North Corfu Strait.

The channel they were following, which was in Albanian waters, was regarded as safe: it had been swept in 1944 and check-swept in 1945.

One of the destroyers, Sumarez, when off Saranda, struck a mine and was gravely damaged.

The other destroyer, the Volage, was sent to her assistance and, while towing her, struck another mine and was also seriously damaged. 45 British officers and sailors lost their lives, and 42 others were wounded.

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An incident had already occurred in these waters on May 15^th, 1946: an Albanian battery had fired in the direction of 2 British cruisers. The UK government had protested, stating that innocent passage through straits is a right recognized by international law.

- The Albanian government replied that foreign warships and merchant vessels had no right to pass through Albanian territorial waters without prior authorization.

- On August 2^nd, 1946, the UK replied that if, in the future, fire was opened on a British warship passing through the channel, the fire would be returned.

- On September 21^st, 1946, the Admiralty in London had cabled to the British Commander-in-chief in the Mediterranean to the following effect: “establishment of diplomatic relations with Albania is again under consideration by His Majesty’s Government who wish to know whether the Albanian Government have learnt to behave themselves. Information is requested whether any ships under your command have passed through the North Corfu Strait since August and, if not, whether you intend to do so shortly.”

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After the explosions on October 22^nd, the United Kingdom announced its intention to sweep the Corfu Channel shortly. The International Central Mine Clearance Board’s made a definite statement to the effect that further sweeps would have to require the consent of Albania. The sweep effected by the British Navy took place on November 12^th/13^th 1946, absent Albanian consent.

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On March 25, 1948, the parties concluded a Special Agreement asking the Court to give judgment on the following questions:

1. Is Albania responsible for the explosions, and is there a duty to pay compensation?

2. Has the United Kingdom violated international law by the acts of its Navy in Albanian waters, first on the day on which the explosions occurred and

secondly, on November 12^th and 13^th, when it undertook the sweep of the strait?

ISSUE: Is Albania responsible for the explosions, and is there a duty to pay compensation?

According to the UK, Albania is responsible because:

1. the minefield was laid by or with connivance or knowledge of the Albanian government;

2. alternatively, the Albanian government knew that said minefield was lying in a part of its territorial waters

3. the Albanian government did not notify the existence of these mines as required by the Hague Convention 8 of 1907 in accordance with the general principles of international law and humanity

4. Albania, despite being in the position to observe the approach of the British ships, failed to warn them of the danger 5. existence of minefield in an

international highway without notification violates the right of innocent passage

COURT:

- first, the documents produced by the UK government and the statements made by the Court’s experts and based on these documents show that the minefield had been recently laid.

1. Albania could not have laid down the mines herself. That suggestion was only put forward pro memoria, without evidence in support

No proof of connivance with Yugoslavia. A charge of such exceptional gravity against a State would require a degree of certainty that has not been reached here, and the origin of the mines laid in Albanian territorial waters remain a matter for conjecture.

2. Did Albania know of the minelaying activities?

YES, the proof may be drawn from INFERENCES OF FACT provided that they leave no room for reasonable doubt.

- Great Britain, being the victim must be allowed a more liberal recourse to inferences of fact and circumstantial evidence; such indirect evidence must be regarded as of especial weight when based on a series of facts, linked together and leading logically to a single conclusion.

So why did the court say that Albania knew of the minelaying activities?

a. because of Albania’s attitude before or after the catastrophe

i. The laying of the mines took place in a period in which it had shown its

intention to keep a jealous watch on its territorial waters and in which it was requiring prior authorization before they were entered: all of which render the assertion of ignorance a priori improbable.

ii. After knowing about the minefield’s existence (post-October 22^nd incident), it protested strongly against the minesweeping operations of the British fleet, but not against the laying of the mines

iii. She did not undertake any of the measures of judicial investigation which would seem incumbent on her in such a case. Such an attitude could only be explained if the Albanian Government, while knowing of the minelaying, desired the circumstances in which it was effected to remain secret.

b. because a survey of the Albanian coast shows the possibility of observing the mine laying operations

i. The channel is easily watched: it is dominated by heights offering excellent observation points.

ii. The operations could have taken 2 to 2 and a half hours and if a normal lookout was kept in the surrounding capes, and if the lookouts were equipped with binoculars, UNDER NORMAL CONDITIONS, the mine-laying operations must have been noticed by these coastguards.

(in the objectionable language of the Court (naks, nagmamarunong), “from all the facts and observations mentioned xxx, the Court draws the conclusion that the laying of the minefield could not have been accomplished without the knowledge of the Albanian Government”) 3. the Albanian government did not notify the existence of these mines as required by the Hague Convention 8 of 1907 in accordance with the general principles of international law and humanity

…and so because Albania must have known of the existence of the minefield, it had the obligation to make the necessary acts of notification. See discussion below.

Court: YES, Albania had the duty to notify xxx

The obligations consisted in notifying, for the benefit of shipping in general, the existence of the minefield and in warning the approaching British warships of imminent danger to which the minefield exposed them.

This however, is not based on the Hague Convention as claimed by UK but on certain general and well-recognized principles, namely elementary consideration of humanity, even more exacting in peace than in war; the principle if freedom of maritime communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of

other States.

Xxx ok so they should have notified UK, but was the possible?

Court: YES, it was perfectly possible for the Albanian authorities to use the interval of almost two hours (from the time they saw the ships to the time the ships would have reached the minefield site) that elapsed before the explosion affecting Saumarez to warn the vessels of the danger they were running.

Xxx now that Albania is responsible, is there a duty to pay compensation and can the Court fix the amount?

Court: YES, Albania s responsible for the damage and loss of human life which resulted from them and that there is a duty upon Albania to pay compensation to the UK.

The Albanian Government has not disputed the competence of the Court to decide what kind of satisfaction is due under the Agreement.

If the Court is component to decide what kind of satisfaction is due to Albania under the agreement, it is difficult to see why it should lack competence t decide the amount of compensation which is due to the united Kingdom under the first part.

ISSUE2: Has the United Kingdom violated international law by the acts of its Navy in Albanian waters, first on the day on which the explosions occurred and secondly, on November 12^th and 13^th, when it undertook the sweep of the strait?

(UK says it was simply exercising the right of innocent passage) VII. was the October 22^nd passage innocent?

Court: Yes.

The North Corfu Channel belongs to the class of international highways through which passage cannot be prohibited by a coastal state in time of peace.

The October 22^nd passage was not a political mission as asserted by Albania; it was designed to affirm a right which had been unjustly denied.

Albania claimed that it was justified in requiring consent because of exceptional circumstances:

it was technically in a state of war with Greece which was claiming a part of its territory.

Court: The circumstances would have been justified in issuing REGULATIONS in respect of the passage of warships through the strait; but not in prohibiting the passage or in subjecting it to the requirement of special authorization.

4. Was Operation Retail (November 12/13^th British minesweeping operations) valid?

Court: NO, the action of the British navy constituted a violation of Albanian sovereignty.

i. It was against the clearly expressed wish of the Albanian government.

ii. It did not have the consent of the international mine clearance organizations.

iii. It was not an exercise of the right of innocent passage: object was to secure the mines as quickly as possible

a. UK presented this as a new and special application of the theory of intervention, by means of which the intervening State was acting to facilitate the task of the international tribunal, or as a method of self-protection or self-help

Court: not accepted. Between independent States the respect for territorial sovereignty is an essential foundation for international relations. 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.