COUR INTERNATIONALE DE JUSTICE

RECUEIL
DES ARRETS, AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU DETROIT
DE CORFOU

(EXCEPTION PRELIMIN AIRE)
ARRET DU 25 MARS 1948

1948

INTERNATIONAL COURT OF JUSTICE

REPORTS

OF
JUDGMENTS, ADVISORY OPINIONS AND ORDERS

THE CORFU
CHANNEL CASE

(PRELIMINARY OBJECTION)
JUDGMENT OF MARCH 25th, 1948
Le présent arrêt doit être cité comme suit :

« Affaire du détroit de Corfou, Arret sur l'exception préliminaire :
C. I. J. Recueil 1948, D. 15.»

This Judgment should be cited as follows :

“Corfu Channel case, Judgment on Preliminary Objection :
I.C. J. Reports 1948, p. 15.”

Noe de vente:
Sales number 6

I5

INTERNATIONAL COURT OF JUSTICE

. 1948.
March 25th.
YEAR 1948. General List:

No. 2.
March 25th, 1948.

THE CORFU
CHANNEL CASE

(PRELIMINARY OBJECTION)

Proceedings instituted by application alleging a case of compulsory
jurisdiction specially pronided for in Charter of United Nations
(Article 36, paragraph x, of Statute ; Articles 25, 32, 36, paragraph 3,
of Charter).—Preliminary Objection to admissibility founded on an
alleged procedural irregularity, as well as on alleged want of juris-
diction (Articles 40, paragraph 1, and 36, paragraph x, of Statuie ;
Article 32, paragraph 2, of Rules) —Jurisdiction founded on voluniary
acceptance by respondent.—Waiver of objection to admissibility. —
Form of acceptance of jurisdiction —Acceptance by Parties by means
of separate and successive steps—— Recommendation of Security Council
to submit a dispute to the Court (Article 36, paragraph 3, of Charter
of United Nations) —Reservations upon acceptance of jurisdiction,

JUDGMENT.

Present: President GUERRERO; Vice-President BASDEVANT ;
Judges ALVAREZ, FABELA, HACKWORTH, WINIARSKI,
Zoritlé, DE VISSCHER, Sir Arnold McNair, KLAESTAD,
Bapawi PaAsxA, Krytov, Reap, Hsu Mo, AZEVEDO ;
M. DAXNER, Judge ad hoc.
THE CORFU CHANNEL CASE 16

In the Corfu Channel case,

between

the Government of the United Kingdom of Great Britain and
Northern Ireland, represented by :

Mr. W. E. Beckett, C.M.G., K.C., Legal Adviser to the Foreign
Office, as Agent, assisted by

The Right Honourable Sir Hartley Shawcross, K.C., M.P.,
Attorney-General ;

Dr. H. Lauterpacht, Professor of international law in the
University of Cambridge ;

Mr. C. H. M. Waldock, Professor of international law in the
University of Oxford ;

Mr. R. O. Wilberforce,

Mr. J: Mervyn Jones,

Mr. M. E. Reed (of the Attorney-General’s Office), members
of the English Bar, as Counsel,

and

the Government of the People’s Republic of Albania, represented
by:

M. Kahreman VYIli, Minister Plenipotentiary of Albania in Paris,
as Agent, assisted by

Professor Vladimir Vochoé, Professor of international law in
Charles University at Prague, and

Professor Ivo Lapenna, Professor of international law in the
University at Zagreb, as Counsel,

THE COURT,
composed as above,

delivers the following judgment :

By an Application, transmitted to and filed in the Registry of
the Court on May 22nd, 1947, under Article 40, paragraph I, of the
Statute, and Article 32, paragraph 2, of the Rules of Court, the
Government of the United Kingdom of Great Britain and Northern
Ireland instituted proceedings before the Court against the Govern-
ment of the People’s Republic of Albania. These proceedings
concerned the incident which occurred in the Corfu Channel on
October 22nd, 1946, when two British destroyers struck mines, the
explosion of which caused damage to these vessels and heavy loss
of life.

5
THE CORFU CHANNEL CASE 17

It is stated in the Application that the subject of the dispute and
the succinct statement of the facts and grounds on which the claim
of the United Kingdom is based are to be found in a note dated De-
cember gth, 1946, transmitted by the Government of the United King-
dom to the Albanian Government, a copy of which is attached to the
Application. It is alleged in the Application that the Court has
jurisdiction ‘‘under Article 36 (I) of its Statute as being a matter,
which is one specially provided for in the Charter of the United
Nations, on the grounds: (a) that the Security Council of the
United Nations, at the conclusion of proceedings in which it dealt
with the dispute under Article 36 of the Charter, by a Resolution,
decided to recommend both the Government of the United Kingdom
and the Albanian Government to refer the present dispute to the
International Court of Justice ; (8) that the Albanian Government
accepted the invitation of the Security Council under Article 32
of the Charter to participate in the discussion of the dispute and
accepted the condition laid down by the Security Council, when
conveying the invitation, that Albania accepts in the present case
all the obligations which a Member of the United Nations would
have to assume in a similar case ; (c) that Article 25 of the Charter
provides that the Members of the United Nations agree to accept
and carry out the decisions of the Security Council in accordance
with the present Charter.”

Finally, it is stated in the Application that the purpose of the claim
of the Government of the United Kingdom is to secure a decision of
the Court that the Albanian Government is internationally respons-
ible for the loss and injury resulting from the fact that two destroyers
of the Royal Navy struck mines in Albanian territorial waters in the
Corfu Channel, and to have the reparation or compensation due
therefor from the Albanian Government determined by the Court.

By a telegram of January 24th, 1947, the Albanian Government
accepted the decision of the Security Council inviting it, in accord-
ance with Article. 32 of the Charter, to participate, without a
vote, in the proceedings with regard to the dispute, on condition
that Albania should accept, in the present case, all the obligations
which a Member of the United Nations would have to assume
in a similar case.

The Resolution of the Security Council of April 9th, 1947, to
which the Application refers, is as follows:

“The Security Council having considered statements of repre-
sentatives of the United Kingdom and Albania concerning a
dispute between the United Kingdom and Albania arising out
of an incident on 22nd October, 1946, in the Strait of Corfu in
which two British ships were damaged by mines with resulting
loss of life and injury to their crews recommends that the United
Kingdom and Albanian Governments should immediately refer
the dispute to the International Court of Justice in accordance
with the provisions of the Statute of the Court.”
THE CORFU CHANNEL CASE 18

Notice of the Application of the Government of the United
Kingdom was given on May 22nd, 1947, by the Registrar of the
Court, to the Albanian Government by telegram and by letter.
On the same day, the Application was transmitted by the Registrar
to the Secretary-General of the United Nations for communication
in accordance with Article 40, paragraph 3, of the Statute.

On June 23rd, 1947, the Registrar received from the Albanian
Government, following upon a reminder addressed to the latter,
a telegram acknowledging receipt of the letter and telegram of
May 22nd, and announcing the despatch of a reply to these
communications.

On July 23rd, 1947, the Deputy-Registrar received from the
hands of M. Kahreman YIli, Albanian Minister in Paris, a letter
from the Deputy-Minister of Foreign Affairs of Albania, dated at
Tirana, July 2nd, 1947, which confirmed the receipt of the Applic-
ation, and, after referring to the contents of that document,
requested the Registrar

“to be good enough to bring the following statement to the
knowledge of the Court :

The Government of the People’s Republic of Albania finds itself
obliged to observe :

x. That the Government of the United Kingdom, in instituting
proceedings before the Court, has not complied with the recom-
mendation adopted by the Security Council on oth April, 1947,
whereby that body recommended ‘that the United Kingdom and
Albanian Governments should immediately refer the dispute to the
International Court of Justice in accordance with the provisions of
the Statute of the Court’.

The Albanian Government considers that, according both to the
Court’s Statute and to general international law, in the absence of
an acceptance by Albania of Article 36 of the Court’s Statute or of
any other instrument of international law whereby the Albanian
Government might have accepted the compulsory jurisdiction of the
Court, the Government of the United Kingdom was not entitled to
refer this dispute to the Court by unilateral application.

2. It would appear that the Government of the United Kingdom
endeavours to justify this proceeding by invoking Article 25 of the
Charter of the United Nations.

There can, however, be no doubt that Article 25 of the Charter
relates solely to decisions of the Security Council taken on the basis
of the provisions of Chapter VII of the Charter and does not apply
to recommendations made by the Council with reference to the pacific
settlement of disputes, since such recommendations are not binding
and consequently cannot afford an indirect basis for the compulsory
jurisdiction of the Court, a jurisdiction which can only ensue from
explicit declarations made by States Parties to the Statute of the
Court, in accordance with Article 36, 3, of the Statute.

3. The Albanian Government considers that, according to the
terms of the Security Council’s recommendation of oth April, 1947,
the Government of the United Kingdom, before bringing the case

7
THE CORFU CHANNEL CASE Ig

before the International Court of Justice, should have reached an
understanding with the Albanian Government regarding the con-
ditions under which the two Parties, proceeding in conformity with the
Council’s recommendation, should submit their dispute to the Court.

The Albanian Government is therefore justified in its conclusion
that the Government of the United Kingdom has not proceeded in
conformity with the Council’s recommendation, with the Statute of
the Court or with the recognized principles of international law.

In these circumstances, the Albanian Government would be within
its rights in holding that the Government of the United Kingdom
was not entitled to bring the case before the Court by unilateral
application, without first concluding a special agreement with the
Albanian Government.

4. The Albanian Government, for its part, fully accepts the
recommendation of the Security Council.

Profoundly convinced of the justice of its case, resolved to neglect
no opportunity of giving evidence of its devotion to the principles
of friendly collaboration between nations and of the pacific settlement
of disputes, it is prepared, notwithstanding this irregularity in the
action taken by the Government of the United Kingdom, to appear
before the Court.

Nevertheless, the Albanian Government makes the most explicit
reservations respecting the manner in which the Government of the
United Kingdom has brought the case before the Court in application
of the Council’s recommendations and more especially respecting the
interpretation which that Government has sought to place on Article 25
of the Charter with reference to the binding character of the Security
Council’s recommendations. The Albanian Government wishes to
emphasize that its acceptance of the Court’s jurisdiction for this case
cannot constitute a precedent for the future.

Accordingly, the Government of the People’s Republic of Albania
has the honour to inform you that it appoints as its Agent, in
accordance with Article 35, paragraph 3, of the Rules of Court,
M. Kahreman Yili, Minister Plenipotentiary of Albania in Paris,
whose address for service at the seat of the Court is the Legation of
the Federal People’s Republic of Yugoslavia at The Hague.”

A copy of this letter, which had been handed to the Registry
by the Agent for the Albanian Government, was transmitted, on
July 24th, to the Agent for the Government of the United Kingdom.

On July 31st, 1947, the President of the Court, as the Court
was not sitting, made an Order, in which, after ascertaining the
views of the Parties with regard to questions of procedure, it was
stated :

“Whereas on July 23rd, 1947, a note signed by the Deputy-
Minister for Foreign Affairs was filed with the Registry on behalf
of the Government of the People’s Republic of Albania, in response
to the Application of the Government of the United Kingdom ;

Whereas, in this note, the Aloanian Government declares inter
alia that the Government of the United Kingdom, in bringing
the case before the Court by unilateral application, has not

8
THE CORFU CHANNEL CASE 20

proceeded in conformity with the recommendation of the Security
Council of April 9th, 1947, or with the Statute of the Court or
the recognized principles of international law, and that, accord-
ingly, the Albanian Government would be within its rights in
holding that the Government of the United Kingdom was not
entitled to bring the case before the Court without first con-
cluding a special agreement with the Albanian Government, but
whereas the Albanian Government, fully accepting for its part
the recommendation of the Security Council, is prepared, notwith-
standing this irregularity and in evidence of its devotion to the
principles of friendly collaboration between nations and of the
pacific settlement of disputes, to appear before the Court ;

Whereas the note above mentioned gives notice of the appoint-
ment as Agent for the Albanian Government of M. Kahreman
Yili, Minister Plenipotentiary of Albania in Paris, and of his
address for service at The Hague ;

Whereas, having regard to the Resolution of the Security
Council of April gth, 1947, the said note of the Albanian Govern-
ment may be regarded as constituting the document mentioned
in Article 36 of the Rules of Court ;”

In the Order, the time-limits were fixed as follows : the 1st Octo-
ber, 1947, for the presentation of the Memorial of the United
Kingdom, and the roth December, 1947, for the presentation of
the Counter-Memorial of Albania.

The Memorial of the United Kingdom, presented within the
time-limit fixed by the Order, contains statements and submissions
with regard to the incidents which occurred on October 22nd,
1946, in the Corfu Channel. These statements and submissions
develop the points indicated in the Application as constituting
the claim of the United Kingdom.

Within the time-limit fixed for the presentation of the Counter-
Memorial, the Agent for the Albanian Government, by a document
dated December Ist and filed in the Registry on December oth,
submitted a Preliminary Objection to the Application on the
ground of inadmissibility, based upon the following statements :

“I. The facts:

(1) The Security Council, in a Resolution adopted on April oth
last, recommended that the United Kingdom and Albanian Govern-
ments should immediately refer the dispute between them arising
out of an incident on October 22nd, 1946, in the Strait of Corfu,
to the International Court of Justice, in accordance with the
provisions of the Statute of the Court ;

(2) contrary to this recommendation, the United Kingdom
Government, alone and without any agreement with the Albanian
Government, approached the Court on May 13th last. By
proceeding thus unilaterally, the Government of the United
Kingdom brought an Application before the Court ;

(3) on July 2nd last, the Albanian Government made to the
Court most explicit reservations respecting the manner in which

9
THE CORFU CHANNEL CASE 21

the Government of the United Kingdom had brought the case
before the Court, but, subject to these reservations, stated that
it was prepared to appear before the Court ;

{4} on the other hand, the Albanian Government, in its letter
of July 2nd last addressed to the Court, fully accepted the Security
Council’s recommendation of April gth last, as far as it was
concerned, and observed that, to bring their case before the
Court, the two Governments should have reached an understanding
in conformity with the Security Council’s recommendation and
in accordance with the provisions of the Court’s Statute.

II. The Law:

(x) According to Article 36, paragraph x, of the Court’s
Statute, its jurisdiction ‘comprises all cases which the parties
refer to it and all matters specially provided for in the Charter
of the United Nations or in treaties and conventions in force’.
According to Article 40, paragraph 1, of the Statute, ‘cases are
brought before the Court, as the case may be, either by the
notification of the special agreement or by a written application....’.

{2) The Albanian Government not being bound by any treaty
or convention in force to submit its dispute with the United
Kingdom Government to the Court, it follows that, in accordance
with the provisions of the Statute of the Court, only both parties
to this dispute can validly do so.

If this is so, the case must be brought before the Court by the
notification of the special agreement, and not by an application.

(3) In its Application of May 13th last, the United Kingdom
Government invokes no treaty or convention nor does it claim
that the parties are submitting their dispute to the Court in
accordance with the provisions of the Statute.

The United Kingdom Government maintains that this is a
‘matter, which is one specially provided for in the Charter of the
United Nations, on the grounds: (a) that the Security Council
of the United Nations, at the conclusion of proceedings in which
it dealt with the dispute under Article 36 of the Charter, by a
Resolution, of which a copy forms Annex 2 to this Application,
decided to recommend both the Government of the United King-
dom and the Albanian Government to refer the present dispute
to the International Court of Justice; (2) that the Albanian
Government accepted the invitation of the Security Council
under Article 32 of the Charter to participate in the discussion
of the dispute and accepted the condition laid down by the
Security Council, when conveying the invitation, that Albania
accepts in the present case all the obligations which a Member
of the United Nations would have to assume in a similar case.
(A copy of the invitation of the Security Council and of the
Albanian Government’s reply thereto form Annex 3 to the present
Application) ; (c) that Article 25 of the Charter provides that
the Members of the United Nations agree to accept and carry
out the decisions of the Security Council in accordance with the
present Charter.’ (See letter from the Agent of the Government
of the United Kingdom of Great Britain and Northern Ireland,
dated May 13th, 1947.)

I0
THE CORFU CHANNEL CASE 22

As regards these reasons given by the United Kingdom Govern-
ment, the Albanian Government has the honour to make the
following observations :

Ad (a) The Security Council, in its Resolution of April goth
last, only recommended ‘the United Kingdom and Albanian
Governments’ to refer their dispute to the International Court
of Justice in accordance with the provisions of the Statute of
the Court.

Such a recommendation certainly cannot ipso facto constitute
a matter specially provided for in the Charter of the United
Nations to which the Court’s jurisdiction extends. Nothing in
the Charter of the United Nations provides for such a case;

ad (b) Incomplying with the invitation given by the Secretary-
General ad interim of the United Nations on January 2oth last,
the Albanian Government only accepted ‘in the present case all
the obligations which a Member of the United Nations would
have to assume in a similar case’, within the meaning of Article 32
of the Charter.

As it was a recommendation, the obligations cannot ipso facto
constitute a matter specially provided for in the Charter of the
United Nations with a view to the Court’s compulsory jurisdiction.

As a result of rights and obligations assumed by them in the
Charter, Members of the United Nations are never bound to
appear before the Court without any other procedure, namely,
without having duly and expressly accepted the Court’s juris-
diction in conformity with the provisions of its Statute ;

ad (c) The Security Council’s Resolution of April oth last
contains a recommendation which, in conformity with the Charter
of the United Nations, has no binding force for the Governments
of Albania and the United Kingdom without their consent and
acceptance. Moreover, according to the very terms of the
Resolution, the two Governments must proceed in conformity
with the provisions of the Statute of the Court in order that
they may submit their dispute to it.

The said Resolution of the Security Council cannot, in con-
formity with the Charter of the United Nations and with the
provisions of the Statute of the Court, be considered to be a
decision of the Security Council, such as would on the one hand
oblige both parties, ipso facto and without any other step, to
appear before the International Court of Justice, and such as
would, on the other hand, authorize them to approach the Inter-
national Court of Justice without regard to the provisions of
the Statute of the Court.

To sum up the foregoing observations, the Albanian Govern-
ment asserts that neither the said Resolution of April gth last,
nor the said declaration of the Albanian Government of
20th January last, nor yet Article 25 of the Charter, can, whether
taken separately or conjointly, be relied on as imposing the Court’s
compulsory jurisdiction on the Albanian Government in the
present case.

HI. Conclusions :

IT
THE CORFU CHANNEL CASE 23

May it please the Court to proceed in conformity with Article 62
of the Rules of Court,

to place on record that, in accepting the Security Council’s
recommendation, the Albanian Government is only obliged to
submit the above-mentioned dispute to the Court in accordance
with the provisions of the Statute of the Court,

and to give judgment that.the Application of May 13th last
addressed to the Court by the Government of the United Kingdom
against the Government of the People’s Republic of Albania, is
inadmissible, the United Kingdom Government having submitted
the said Application contrary to the provisions of Article 40,
paragraph 1, and of Article 36, paragraph 1, of the Statute of
the Court.”

The Albanian Preliminary Objection was transmitted, on
December gth, to the Agent for the United Kingdom and was
communicated on December 11th to the Members of the United
Nations, pursuant to the provisions of Article 63 of the Statute.

By an Order, made on December Ioth, 1947, the. President of
the Court, as the Court was not sitting, fixed January 2oth, 1948,
as the time-limit for the presentation by the Government of the
United Kingdom of a written statement of its observations and
submissions in regard to the Preliminary Objection.

This statement, dated January 19th, 1948, and received in the
Registry on the same date, contains, in addition to a number of
arguments, the following statements and submissions :

(a) It [the Government of the United Kingdom] has fully complied
with the recommendation of the Security Council immediately
to refer the dispute to the Court. It did so in its Application
of 13th May, 1947, which fully and clearly indicated the
subject of the dispute, and the parties, in accordance with
Article 40 (1) of the Statute of the Court and Article 32 (2)
of the Rules of Court.

(6) The Government of Albania, after delivery of the United Kingdom
Application, stated in its letter of 2nd July, 1947, that it
fully accepted the recommendation of the Security Council,
and that it was prepared to appear before the Court and to
accept its jurisdiction in this case.

(c) This Albanian letter, coupled with the Resolution of the Security
Council of gth April, 1947, was accepted by the President
of the Court as a document which satisfied the conditions
laid down by the Security Council for the appearance before
the Court of a State not party to the Statute. (See Resolution
of the Security Council of 15th October, 1946, under which
a State not party to the Statute may make a ‘particular
declaration’ accepting the jurisdiction of the Court in respect
‘of a particular dispute only.)

(d) In these circumstances the jurisdiction of the Court to make
the Order of 31st July, 1947, and to proceed with the trial
of this dispute is fully established. Under Article 36 (1) of
the Statute, the jurisdiction of the Court comprises all cases

12
THE CORFU CHANNEL CASE 24

which the parties refer to it, and there is no dispute which
States entitled to appear before the Court cannot refer to
it.... The parties have clearly referred the present dispute
by the above-mentioned documents (namely, the United
Kingdom Application of 13th May, 1947, and the Albanian
letter of 2nd July, 1947), which, whether or not they constitute
a ‘special agreement’, at least constitute a ‘reference’. A
special agreement is not necessary...

(e) Article 40 of the Statute merely defines the formal basis for

action by the Court in a case where jurisdiction is established
by Article 36 (x). There is nothing in the Statute or the Rules
of Court which prevents the proceedings being formally instituted
by application, even though the jurisdiction of the Court is
established by a ‘reference’ by the parties or by a ‘special
agreement’. Accordingly the Government of the United
Kingdom, in bringing this matter before the Court by applic-
ation, has, it is submitted, proceeded correctly...

(f) Further, there has been, in fact, an agreement between the parties

constituted by the acceptance of the jurisdiction on the part
of the Government of the United Kingdom in compliance with
the Resolution of the Security Council of gth April, 1947 (as
evidenced by its Application of 13th May, 1947), followed by
an acceptance of the jurisdiction on the part of the Govern-
ment of Albania in its letter of 2nd July, 1947, to refer
(without prejudice to the Albanian Government’s view as to
the interpretation of Article 25 of the Charter) to the Court
the issues defined in the Application. This agreement pos-
sesses all the essentials of a ‘special agreement’ and conforms
fully with Article 40 of the Statute....

(g) Even if (which is not admitted) there was any formal irregularity

in the mode of the commencement of the present proceedings,
this irregularity has been cured, because the Albanian Govern-
ment by its letter of 2nd July, 1947, has waived any possible
objection and has consented to the jurisdiction of the Court.
An irregularity in the manner in which a case is introduced
may be cured by subsequent events....

(hk) Having once consented to the jurisdiction, the Albanian Govern-

ment cannot afterwards withdraw its consent....

{:) The President’s Order of 31st July, 1947, clearly proceeded upon

the basis that the Albanian Government had definitely accepted
the jurisdiction, as was, in fact, the case. It is not competent
for the Albanian Government to reopen the question of juris-
diction.

12. In view of the circumstances above referred to, which con-
stitute, in the submission of the Government of the United Kingdom,
a clear acceptance by Albania of the jurisdiction of the Court, the
Government of the United Kingdom has not, in these Observations,
set forth arguments on the applicability of Article 25 of the Charter.
However, the Government of the United Kingdom must reserve the
right, if necessary, to invoke the jurisdiction of the Court on the
grounds set forth in its original Application.”

13
THE CORFU CHANNEL CASE 25

In conclusion, the Government of the United Kingdom

“submits to the Court :—

(a) that the preliminary objection submitted by the Government
of Albania should be dismissed,

{b) that the Government of Albania should be directed to comply
with the terms of the President’s Order of 31st July, 1947,
and to deliver a Counter-Memorial on the merits of the dis-
pute without further delay.”

As the Court did not have upon the Bench a judge of Albanian
nationality, the Albanian Government availed itself of the right
provided by Article 31, paragraph 2, of the Statute, and designated
Dr. Igor Daxner, President of a Chamber of the Supreme Court of
Czechoslovakia, as judge ad hoc.

In the course of public sittings, held on February 26th, 27th
and 28th, and on March ist, 2nd and 5th, 1948, the Court heard
oral arguments on behalf of the respective parties: M. Kahreman
Yili, Agent, and Professor Vochoë, Counsel, for Albania; and
Mr. W. E. Beckett, Agent, and Sir Hartley Shawcross, Counsel,
for the United Kingdom. On being questioned by the President
before the close of the hearing, the Agent for the Albanian Govern-
ment declared that the submissions presented in the Albanian
Preliminary Objection of December gth, 1947, were final submis-
sions ; a similar declaration was made on behalf of the Agent for the
Government of the United Kingdom with regard to the submissions
in the Observations of the United Kingdom of January 19th, 1948.

Documents in support were filed as annexes to the Application
and Memorial of the United Kingdom Government, to the Prelim-
inary Objection of the Albanian Government and to the Observ-
ations of the United Kingdom Government in regard to this
Preliminary Objection, as well as in view of the oral proceedings 1.

The above being the state of the proceedings, the Court must
now adjudicate upon the Preliminary Objection raised on behalf
of the Government of the People’s Republic of Albania.

x * *

In the written submissions, which it confirmed orally at the
hearing on March 5th, 1948, the Albanian Government requests
the Court

“to place on record that the Albanian Government, in accepting the
Security Council’s recommendation, is only obliged to submit the

above-mentioned dispute to the Court in accordance with the provisions
of the Statute of the Court’,

and

“to give judgment that the Application of May 13th last, addressed
to the Court by the Government of the United Kingdom against the

1 See list in Annex.

14
THE CORFU CHANNEL CASE 26

Government of the People’s Republic of Albania, is inadmissible,
the Government of the United Kingdom having submitted the said
Application contrary to the provisions of Article 40, paragraph 1,
and Article 36, paragraph 1, of the Statute of the Court”.

The first submission relates to the Resolution of April oth, 1947,
in which the Security Council recommended “‘that the United King-
dom and Albanian Governments should immediately refer this
dispute to the International Court of Justice in accordance with
the provisions of the Statute of the Court”. The Albanian Govern-
ment accepted this recommendation and on the basis of its accep-
tance recognizes its obligation to refer the dispute to the Court
in accordance with the provisions of the Statute. It is true that
this obligation could only be fulfilled in accordance with the pro-
visions of the Statute. In recognizing this fact in accordance with
the request of the Albanian Government, the Court points out
that that Government subsequently contracted other engagemenis,
the date and exact scope of which will be established later.

The second submission of the Albanian Government, which is
disputed by the Government of the United Kingdom, appears to
constitute an objection on the ground of the inadmissibility of the
Application. The intention of the Albanian Government, however,
seems to be somewhat lacking in precision in this respect. When it
refers, in its submissions, to Article 40, paragraph 1, of the
Statute of the Court, the Albanian Government appears merely
to have in mind a procedural irregularity resulting from the fact
that the main proceedings were instituted by means of an applic-
ation instead of by a special agreement concluded beforehand.
The Albanian Government, however, also refers to Article 36,
paragraph 1, of the Statute, a provision which relates exclusively
to the jurisdiction of the Court; and the criticisms which are
directed against the Application of the United Kingdom in the
text of the Preliminary Objection, relate to an alleged lack of com-
pulsory jurisdiction as well as to the formal admissibility of the
Application. |

This argument may be explained by the connexion which the
United Kingdom Government, for its part, had made between the
institution of proceedings by application and the existence, alleged
by it in this case, of compulsory jurisdiction.

In support of its Application, the Government of the United
Kingdom invoked certain provisions of the Charter of the United
Nations and of the Statute of the Court to establish the existence
of a case of compulsory jurisdiction. The Court does not consider
that it needs to express an opinion on this point, since, as will be
pointed out, the letter of July 2nd, 1947, addressed by the Albanian
Government to the Court, constitutes a voluntary acceptance of
its jurisdiction.

The letter of July 2nd, 1947, in spite of the reservation stated
therein, the exact scope of which will be considered later, removes

15
THE CORFU CHANNEL CASE 27

all difficulties concerning the question of the admissibility of the
Application and the question of the jurisdiction of the Court.

With respect to the first point, the Albanian Government, while
declaring on the one hand that it “‘would be within its rights in
holding that the Government of the United Kingdom was not
entitled to bring the case before the International Court by unilat-
eral application, without first concluding a special agreement
with the Albanian Government’’, states, on the other hand, that
“it is prepared, notwithstanding this irregularity in the action taken
by the Government of the United Kingdom, to appear before the
Court”. This language used by the Albanian Government cannot
be understood otherwise than as a waiver of the right subsequently
to raise an objection directed against the admissibility of the Applic-
ation founded on the alleged procedural irregularity of that
instrument,

The letter of July 2nd, 1947, is no less decisive as regards tne
question of the Court’s jurisdiction. Not only does the Albanian
Government, which had already assumed certain obligations
towards the Security Council by its telegram of January 24th, 1947,
declare in that letter that it ‘‘fully accepts the recommendation
of the Security Council” to the effect that the dispute should be
referred to the Court in accordance with the provisions of the Court’s
Statute, but, after stating that it is ‘‘profoundly convinced of the
justice of its case’, it accepts in precise terms “‘the jurisdiction
of the Court for this case”. The letter of July 2nd, therefore, in
the opinion of the Court, constitutes a voluntary and indisputable
acceptance of the Court’s jurisdiction.

While the consent of the parties confers jurisdiction on the Court,
neither the Statute nor the Rules require that this consent should
be expressed in any particular form.

The Albanian contention that the Application cannot be enter-
tained because it has been filed contrary to the provisions of
Article 40, paragraph 1, and of Article 36, paragraph 1, of the
Court’s Statute, is essentially founded on the assumption that the
institution of proceedings by application is only possible where
compulsory jurisdiction exists and that, where it does not, proceed-
ings can only be instituted by special agreement.

This is a mere assertion which is not justified by either of the
texts cited. Article 32, paragraph 2, of the Rules does not require
the Applicant, as an absolute necessity, but only “‘as far as pos-
sible’, to specify in the application the provision on which he founds
the jurisdiction of the Court. It clearly implies, both by its actual
terms and by the reasons underlying it, that the institution of
proceedings by application is not exclusively reserved for the
domain of compulsory jurisdiction.

In submitting the case by means of an Application, the Govern-
ment of the United Kingdom gave the Albanian Government the

16
THE CORFU CHANNEL CASE 28

opportunity of accepting the jurisdiction of the Court. This
acceptance was given in the Albanian Government’s letter of
July and, 1947.

Besides, separate action of this kind was in keeping with
the respective positions of the parties in proceedings where there is
in fact a claimant, the United Kingdom, and a defendant, Albania.

Furthermore, there is nothing to prevent the acceptance of
jurisdiction, as in the present case, from being effected by two
separate and successive acts, instead of jointly and beforehand by
a special agreement. As the Permanent Court of International
Justice has said in its Judgment No. 12, of April 26th, 1928, page 23:
“The acceptance by a State of the Court’s jurisdiction in a partic-
ular case is not, under the Statute, subordinated to the observance
of certain forms, such as, for instance, the previous conclusion of
a special agreement.”’

The Security Council’s recommendation has been relied upon to
support opposite conclusions. But, in the first place, though this
recommendation clearly indicates that the bringing of the case
before the Court requires action on the part of the parties, it does
not specify that this action must be taken jointly, and, in the second
place, the method of submitting the case to the Court is regulated
by the texts governing the working of the Court as was pointed
out by the Security Council in its recommendation.

The Court cannot therefore hold to be irregular a proceeding
which is not precluded by any provision in these texts.

The scope of the reservation formulated in the letter of July 2nd,
1947, has still to be considered. The reservation is as follows:
‘Nevertheless, the Albanian Government makes the most explicit
reservations respecting the manner in which the Government of
the United Kingdom has brought the case before the Court in
application of the Security Council’s recommendation and more
especially respecting the interpretation which that Government has
sought to place on Article 25 of the Charter with reference to the
binding character of the Security Council’s recommendations.
The Albanian Government wishes to emphasize that its acceptance
of the Court’s jurisdiction for this case cannot constitute a precedent
for the future.”

This reservation is the only limit set by the Albanian Govern-
ment either to its acceptance of the Court’s jurisdiction, or to
its abandonment of any objection to the admissibility of the
proceedings. It is for the Court to decide, with binding
force as between the parties, what is the interpretation of the
letter of July 2nd, 1947. It is clear that the reservation contained
in the letter is intended only to maintain a principle and to prevent
the establishment of a precedent as regards the future. The
Albanian Government makes its reservations—both as to the
manner in which the United Kingdom Government has instituted

17
THE CORFU CHANNEL CASE 29

the proceedings, and as to the interpretation which that Govern-
ment claimed to give to Article 25 of the Charter with a view to
establishing the Court’s compulsory jurisdiction—not for the pur-
poses of the present proceedings, but in order to retain complete
freedom of decision in the future. It is clear that no question of
a precedent could arise unless the letter signified in the present
case the acceptance of the Court’s jurisdiction on the merits.

The reservation in the letter of July 2nd, 1947, therefore does
not enable Albania to raise a preliminary objection based on an
irregularity of procedure, or to dispute thereafter the Court’s juris-
diction on the merits.

FOR THESE REASONS,

while placing on record the declaration contained in the first
submission of the Albanian Government, but subject to the explicit
reservation of the obligations assumed by that Government in its
letter of July 2nd, 1947,

THE CourRT,
by fifteen votes against one,

(I) rejects the Preliminary Objection submitted by the
Albanian Government on December oth, 1947 ;

(2) decides that proceedings on the merits shall continue
and fixes the time-limits for the filing of subsequent pleadings
as follows:

(a) for the Counter-Memorial of the Albanian Government,
Tuesday, June 15th, 1948;

(6) for the Reply of the United Kingdom Government,
Monday, August 2nd, 1948 ;

(c) for the Rejoinder of the Albanian Government, Monday,
September 2oth, 1948.

The present judgment has been drafted in French and English,
the French text being authoritative.

18
: THE CORFU CHANNEL CASE 30

Done at the Peace Palace, The Hague, this twenty-fifth day of
March, one thousand nine hundred and forty-eight, in three copies,
one of which shall be placed in the archives of the Court and the
others delivered to the Governments of the People’s Republic of
Albania and of the United Kingdom of Great Britain and Northern
Ireland respectively.

(Signed) J. G. GUERRERO,

President.

(Signed) EDVARD HAMBRO,

Registrar.

Judges BASDEVANT, ALVAREZ, WINIARSKI, ZORIËIÉ, DE VISSCHER,
Bapawi PasHA, KRYLOV, whilst concurring in the judgment of
the Court, have availed themselves of the right conferred on them
by Article 57 of the Statute and appended to the judgment a state-
ment of their separate opinion.

M. DAXNER, Judge ad hoc, declaring that he is unable to concur
in the judgment of the Court, has availed himself of the right
conferred on him by Article 57 of the Statute and appended to the
judgment a statement of his separate opinion.

(Initialled) J. G. G.
(Initialled) E. H.

19
46

ANNEX.

LIST OF DOCUMENTS SUBMITTED TO THE COURT.

I.—ANNEXES DEPOSITED BY THE GOVERNMENT
OF THE UNITED KINGDOM.

A.—In the course of the written proceedings :

Admiralty Chart No. 206 showing the Corfu Strait.
Section of German Mine Information Chart.

(This is a chart which was captured by the Allies showing the
North Corfu Channel and the position of mines laid by the Axis
there, and the original chart has been filed with the Registry.)
International Agreement between the Governments of the United
Kingdom, France, U.S.S.R. and the United States, setting up the
Mine Clearance Boards and dated 22nd November, 1045.
Affidavit by despatch clerk at the Admiralty proving despatch of
Medri Charts to Albania.

Section of Medri Index Chart showing North Corfu swept channel
and the international highway established therein together with
Medri pamphlets for use with the Index Chart.

(A single copy of the entire Chart and of the complete pamphlets
numbered 5, 9 and 12 have been filed with Registry.)
Diplomatic correspondence between the Government of the United
Kingdom and Albania regarding the right of navigation in the
Strait of Corfu.

Admiralty tracings showing the North Corfu swept channel and
the position and tracks of H.M. ships Orion, Superb, Leander.
Saumarez and Mauritius, passing through the North Corfu Channel
on 15th May, 1946, and on 22nd October, 1946.

Photographs of H.M.S. Saumarez (below water line) and Volage
(bows blown off) taken shortly after the explosion on 22nd October,
1946.

Admiralty tracing showing position of H.M.’s ships at the time
of the explosion.

Report on damage to HMS. Saumarez.

Report on damage to H.M.S. Volage.

List of sailors killed with statement of pensions, etc., payable to
dependants.

List of sailors injured with statement of expenses, pensions, etc.
Statement of cost of repairs to the Volage and cost of replacement
of the Saumarez.

Minutes of Mine Clearance Boards.

Reports of Capitaine Mestre.

(There were two reports, both in French. The reason why there
were two reports was because Capitaine Mestre wished to make

35
17.
18,

19.
20.

21.
22.

23.
24.

THE CORFU CHANNEL CASE 47

certain corrections in his second report of certain statements which
he had made in his first report.)

Reports on Operation “Retail’’.

(The minesweeping operation of 13th November, 1946.)

Chart showing position in which mines were found on
13th November, 1946.

Photographs of the mines. .

Report on mines examined at Admiralty Mining Establishment,
Leigh Park House, Hants.

Chart showing the defences of Saranda.

Affidavit of Skipper Bargellini regarding the incident of U.N.R.R.A.
barges on 29th October, 1946. :
Documents and records of the Security Council, etc., relative to
the dispute.

Letter from the Deputy-Minister for Foreign Affairs of the People’s
Republic of Albania to the Registrar of the Court, dated July 2nd,
1947 [attached as annex to the Observations and Submissions of
the Government of the United Kingdom of January 10th, 1948].

B.— During the oral proceedings :

Several extracts from the Records of the Security Council (Second
Year) and of the Security Council Committee on the Admission
of New Members (16th, 17th and 18th Meetings, 1947).

JI.— ANNEXES DEPOSITED BY THE ALBANIAN GOVERNMENT.
A.—During the written proceedings :

Resolution of the Security Council of the United Nations adopted
on April oth, 1947.

Cable from the Acting Secretary-General to the President of the
Council of Ministers of the People’s Republic of Albania dated
2oth January, 1947, and reply dated 24th January, 1947.

B.—During the oral proceedings :

Extracts from the publication : Documents of the United Nations
Conference on International Organization, San Francisco, 1945,
photo-lithoprinted from original documents, Vol. XI, XII, XIII
and XIV.

Extracts from the publication: Permanent Court of International
justice. Advisory Committee of Jurists. Procés-verbaux of the
proceedings of the Committee, June 16th— July 24th, 1920, with
annexes. The Hague, 1920.

Extract from the publication: League of Nations. Report to the
Second Assembly of the League on the Work of the Council and on
the Measures taken to execute the decisions of the First Assembly.
A. 9. 1921, Geneva, 18th August, 1921.

Extract from the publication: Report to the President of the results
of the San Francisco Conference by the Chairman of the United
Nations Delegation, the Secretary of State, June 26, 1945. Depart-
ment of State Publication 2349, Conference Series 71.

36
Qi

Io.

If.

12.

13.

I4.

THE CORFU CHANNEL CASE 48

Extract from the publication: Depariment of External Affairs,
Conference Series 1945, No. 2, Report on the United Nations Con-
ference on International Organization held at San Francisco,
25th April—26th June, 1945, Ottawa.
Extracts from the publication: Hearing before the Committee on
Foreign Relations, United States Senate, Seventy-ninth Congress
First Session, on the Charter of the United Nations for the main-
tenance of international peace and sécurity, submitted by the President
of the United States on July 2, 1945 (Unrevised), July 10, 1945.
Printed for the use of the Committee on. Foreign Relations.
(United States Government Printing Office, Washington: 1945.)
Extract from the article The Jurisdiction of the Security Council
over Disputes (American Journal of International Law, Volume 40,
No. 3, July, 1946), by Clyde Eagleton, Professor of New York
University, Expert of the Delegation of United States of America
to the San Francisco Conference.
Extracts from the publication: Documents of the United Nations
Conference on International Organization, San Francisco, 1945.
Photo-lithoprinted from original documents, published in coopera-
tion with the Library of Congress by United Nations Information
Organizations, 1945, London—New York, Voi. XI.
Extract from the Publication: Republic of Chile, Ministry for
External Affairs : Chile and the San Francisco Conference, Santiago,
MCMXLYV.
Extract from the publication: The Records of the First Assembly,
Meetings of the Committees, Geneva, 1920. Minutes of the Meet-
ings of the Third Committee (Permanent Court of International
Justice). Fifth Meeting, 8 December 1920.
Extract from the publication: League of Nations, The Records
of the First Assembly : Meeting of Committee I, Geneva, 1920.
Extract from the publication: Permanent Court of International
Justice, Series D, Acts and Documents concerning the Organization,
of the Court.

Addendum to No. 2z.

Revision of the Rules of Court.
Extract from the publication: The British Yearbook of Interna-
tional Law, 1930, Oxford.

Decisions of the Permanent Court of International Justice on

Points of Law and Procedure of General Application, by
W. E. Beckett, M.A., Formerly Fellow of All Souls College, Oxford.
(Legal Adviser to the Foreign Office.)
Extract from the publication: Permanent Court of International
Justice. Series D. Acts and Documents concerning the Organ-
ization of the Court. Third Addendum to No. 2: Elaboration of
the Rules of Court of March 11th, 1936. Leyden, 1936.

37