7S

DISSENTING OPINION BY JUDGE AZEVEDO.
{Translatton.]

1.—The purpose of the following observations is to explain
the reasons which compel me, to my regret, to der from certain
of the grounds and certain of ‘the findings of the Judgment.

Taking as a starting-point for considering the facts of this case
the month of October 1944, it will be remembered that at that
time Italy had been beaten and the Allies’ advance in the Mediter-
ranean gave them free play to follow after the Germans in the
Mediterranean.

At this time the situation in the Balkans was very chaotic ;
there were intestinal disputes of great complexity and there was no
unity among the different groups of resistance to the Axis, which
were also fighting one another.

In Albania, one of these groups assured the direction of public
affairs and contact with the Allies, mainly the British and Amer-
icans, who had military missions attached to this Provisional
Government. But after the general elections in December 1945,
relations between the Government, which the popular vote had
confirmed, and the military missions were not always harmonious.
However, steps were taken with a view to the establishment of
diplomatic relations between the United Kingdom and Albania
in May 1946, in spite of the postponement of Albania’s admission
to the United Nations as the result of the vote of certain countries,
among them Great Britain.

2.—At the end of 1944, one of the chief problems of the Allies
was the clearance of maritime routes in order to facilitate the
advance of the naval forces ; in the Adriatic this was mainly, if not
entirely, the task of the British. The minesweeping forces were
moving southward, and at the beginning of October they proceeded
to clear the Corfu Channel while the Germans were making their
last efforts by laying a minefield at Salonika as late as October 23rd.

The end of, hostilities led to a need for intensifying work on
opening up sea communications, and certain international bodies
were created for that purpose.

Thus, in May 1945, the Central International Mine Clearance
Board and the Mediterranean Mine Clearance Board (Medzon) were
formed, and this was followed in July by the creation of the Inter-
national Routeing and Reporting Authority.

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DISSENTING OPINION BY JUDGE AZEVEDO 79

The work of these various bodies led to the publication, beginning
in October 1945, of two series of navigational documents, the Medri
pamphlets and charts.

It should on the other hand be remembered that Albania knew
of the existence of the Medri channel, No. 18/32, at any rate as
shown in the charts and pamphlets supplied up to a certain date by
the general who was head of the British military mission at Tirana.

It has been alleged that in October 1944 the United Kingdom
had merely reswept a former German channel. However, it was
only in May 1945 that the German charts were available, and these
only gave the direction and not the boundaries of the channel. It
must be said that subsequent verification has not shown that there
was much difference between the two channels, though it must be
admitted that the new channel keeps somewhat closer to the coast.

It is also noteworthy that the green line of the channel on almost
each successive edition of the Medri charts was gradually moved.
though the pamphlets retain the co-ordinates mentioned in the
radiotelegram of November 7th, 1944, which is said to have been
intercepted by chance. It is not clear why these changes were
made, for there is no allusion to minesweepings after ebruary 1945.
It is further to be regretted that more exact details of the mine-
sweeping had not been kept for the Court to see, though it is
understandable that the urgency of the work led to its being
regarded as more important than the preparation of reports.

It must be added that during the minesweeping operation on
November 13th an error was noted in the position of the Albanian
coastline South of Cape Kiephali on the Admiralty chart No. 206;
this error was at once marked on the map.

3.—More than a year after the minecleareance operations,
two British cruisers, coming from the North, passed through the
Channel; they were fired on by a coastal battery, but they were
not hit by the projectiles and continued on their way towards
Corfu.

A controversy arose on this subject ; it remained at first in the
legal sphere. It was interrupted between June 21st and the third
British note on August 2nd. However, relations betweeñ the two
countries did not improve. Albania considered even the United
Kingdom to be an ally, or at least a faithful friend of a neighbouring
nation which had announced to the United Nations its intention to
claim a part of Albanian territory.

But, in reply to the United Kingdom’s assertion of a right of
innocent passage, Albania had said that she was opposed to the
passage of any vessel through the Corfu Channel without previous
request and without her authorization. Furthermore, on May 17th,
1946, Albania informed the United Kingdom and certain other

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countries at the same time that its Government prohibited the
passage under the conditions mentioned above.

Briefly, the United Kingdom was not content with a platonic
attitude and with mere reservations. Although the commander of
the naval forces had not replied to the shots on May 15th as he
might have done in legitimate defence, the United Kingdom took
energetic action as soon as the strange prohibition was made known.

It should be noted that Greece, which was the country most
concerned in free navigation in a channel which led chiefly to its
ports and to waters over which it had rights, had preferred the
course of keeping away from the passage so as to avoid increasing
the frontier incidents.

Great Britain had given a similar order, but it was cancelled,
at first, on August 21st, and was then limited so as to allow of a
passage if it should be found necessary. Another change resulted
from the Admiralty telegrams of September 15th and 22nd ; though
indirectly, they invited the Commander of the Mediterranean Fleet
to try to make a passage through the North Corfu Channel, even
if it was not necessary.

The last words in the previous British note of August 2nd was a
threat to return fire. How could a test be made of a change of
attitude of the party to whom this challenge was directed? In
order to ascertain whether the Albanian authorities had acquired
a certain standard of diplomatic conduct, they were to be warned
of the experiment, at any rate so that they might understand the
steps taken expressly to give the appearance of a friendly passage,
such as the direction in which guns were to be trained, etc.

4.—The autumn cruise of the Mediterranean Fleet was ending.
As early as August r5th, the commander had arranged the
programme which was to terminate with an assembly of all the
units at Argostoli on October 23rd ; this programme had therefore
to be changed, ‘in order tnat four of the ships might pass through
the Channel.

The result of this experiment was most lamentable ; the explosion
of two mines led to the practical destruction of one destroyer, which
had to be abandoned, and serious damage to another, besides
killing 44 men and wounding 42.

In regard to the circumstances of this passage, a certain number
of divergencies have been gradually smoothed out, after explan-
ations and verifications, and still more after the correction of a
number of errors some of which were rather serious. Even the
logs, which are universally considered trustworthy, contained some
serious inaccuracies.

In regard to the spot where the accidents occurred, there were
errors which led to discussion, and in regard to the time of the
second explosion, there were various data which required additional
information before thex could be reconciled. One last circumstance

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must be noted : the order to change course in front of Denta Point
was given a little late, and this led to a departure from the axis of
the Channel and a closer approach to the coast.

The combination of all these errors, and of other circumstances
already referred to, would have left a residuum of serious doubts
if one fact had not been incontestable and if the details could have
obscured the main picture. We are therefore compelled to admit
that the two explosions occurred within the limits of the Channel.
But we cannot be sure that at that time Albania had all the inform-
ation necessary for reaching the same conclusion.

5.—Once certainty was arrived at in regard to the damage
—which is the first element to be considered—it is necessary to
ascertain the fact that produced the damage by determining the
indispensable link of causation between antecedent and consequence,
so that the two may not merely be connected in time by a relation
of simple contiguity.

What caused the damage in this case? It is to be observed,
first, that the Germans had already laid some mines ; on the other
hand, the view of the Court’s Experts must be accepted that a sweep
of moored mines, when properly executed, gives an assurance that
the mines were cleared 100%. For technical reasons the hypothesis
that the mines were laid by submarines or by aeroplanes, or that
they were magnetic mines, had to be abandoned. One must also
reject the hypothesis that they were floating mines, owing to the
striking coincidence of the two explosions occurring practically in
the same circumstances of time and place, without these facts
being attenuated by the circumstance that other vessels passed
through without injury.

Lastly, eloquent evidence was provided by the nature of the
damage, showing considerable violence, as is definitely proved by
the documents filed in the case, although we do not know what
explosive charge was used in the Italian mines which were employed
in the enemy minefields.

We have thus eliminated all other possibilities than the explan-
ation that a minefield was laid after the end of enemy action : we
thus succeed, by a process of elimination, in isolating a single
antecedent, which is thus transformed into a veritable cause,
according to the classical rules of JOHN STUART MILL.

This solution is impressive in itself. It was decisively supported
by the discovery of a new minefield on November 13th, 1946.

However, while admitting, at the last, that a new minefield was
laid, Albania only changed her position; for she still denies that it
was these mines that caused the damage. She demands, in fact,
that it shall be proved that the minefield was laid before
October 22nd, and she puts forward the hypothesis that they were

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only laid after the events in order to make difficulties for the coastal
State.

But, if the laying of a minefield in time of peace is almost
inconceivable, the Albanian suggestion would involve the successive
laying of two minefields at short intervals, and that would be even
more extraordinary.

6.—When one has to appreciate the unlawful character of
the act causing the damage, one is obliged to take into account
certain considerations by which a judge must be guided in this
connexion and also in the problem relating to imputability, which
is so closely linked to it. This preliminary statement seems to be
called for when one is taking a different road to arrive at the same
goal ; because in such a case a previous exposition of a definitely
doctrinal character becomes unavoidable.

For instance, the Parties strongly emphasized the necessity of
demonstrating, in this case, the existence of a breach of an inter-
national obligation. That notion is of such importance that many
writers have accorded it the foremost place in a theory of respons-
ibility, now in such high favour.

7.—But this formula, though so greatly lauded by its adherents,
does not help to eliminate difficulties which are also encountered
in municipal law.

Though operating solely on a limited plane, such as the infraction
of a rule of positive law, this doctrine seeks to claim advantages
which could only be gained by the application of another principle.
Thus, the divergencies as to the necessity of specific clauses con-
cerning preexisting obligations have nothing in common with the
parallel action of another principle which makes, or does not make,
imputability conditional on the moral element of culpability.

It follows that the doctrine of a breach of international obliga-
tions can only claim to be regarded as objective by a confusion of
terms, except in so far as it reinforces its basic principle by another
principle, involving the exclusion of the notion of culpa.

But the fact that the doctrine cannot derive support from the
latter element is proved by the fact that its champions are them-
selves divided into three different groups: one which does not
discard the requirement of culpa, one which sees no need for that
requirement ; and a third which maintains both possibilities, accord-
ing as international law, in a given case, does or does not require
recourse to the notion of cu/pa (omission, indirect responsibil-
ity, etc.).

The weak point is found in the very core of this theory, i.e.,
in the foremost place accorded to the nature of the violation. The
result is a restriction of the practical application of responsibility.

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DISSENTING OPINION BY JUDGE AZEVEDO 83

In endeavouring to judge of the conduct of States, this concep-
tion leads to an alternative, towards two opposing tendencies :
either definite obligations must be laid down, or on the contrary
a general line of conduct without precise marks must be admitted.
And the choice between these two forces of expansion or contrac-
tion may be fatal to the doctrine itself.

If, for instance, it was required that the violation of an obliga-
tion shall be previously established in each case, the drawing up of
a complete catalogue of cases of responsibility becomes inevitable.
But this would correspond to a less advanced phase, the limitative
enumeration of the sources of delicts and quasi-delicts, in accord-
ance with the general tradition of Roman law. We should then be
approaching the criminal law and end by accepting the principle
nullum crimen sine lege.

But if, on the other hand, we prefer to abandon this rigidity, we
may expose ourselves to another danger. Setting aside conven-
tions and custom, and accepting the influence of general principles
of law, we lose all control and are unable to stop halfway. We
are compelled to go as far as the fundamental trilogy and to estab-
lish civil responsibility by the simple violation of neminem lædere, or
else to draw, arbitrarily, precise corollaries from vague principles.

At this point, the new doctrine will have lost all purpose and
will collapse.

8.—This criticism, which indeed is well known (see ROBERTO Aco,
Recueil des Cours, Vol. 68, p. 483, GEORGES SCELLE, Cours de Droit
international, publ. Paris, 1948, p. 912), may continue on the same
footing if we examine in detail the pre-existence of a duty, disregard
of which must involve responsibility, pecuniary or moral.

We observe first that the determination of these positive inter-
national obligations as sources of responsibility leads to difficulties
which are not easy to overcome, especially when a judge is faced
with a new case, not clearly foreseen.

If there is no convention or custom directly governing the
question, must the judge pronounce a non liquet and thus hamper
all progress in the theory of responsibility ? Custom is made up
of recognized precedents, and we must not prevent the formation
of new precedents ; an international lawsuit may give opportunities
for such formation and for putting an end to uncertainties that
previously prevailed.

9.—The existence of a conventional rule is not enough to
dispose of the difficulties, and the present case is an eloquent

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example of the need for departure from a very rigid rule. The
facts considered are not in accord with any known precedents ;
there is no custom that can be relied on, nor can the difficulty be
overcome by reference to a convention.

It is interesting to note that the United Kingdom did not merely
invoke Hague Convention No, VIII of 1907, but recognized that
it was also necessary to rely on general principles of international
law and even on simple reasons of humanity.

For, indeed, the convention in question is not really applicable
in this case, unless by an interpretation which would be carrying
the method of analogy to an extreme limit. It had to be pointed
out that it is declaratory, which would be equivalent to regarding
it as superfluous. According to its text, the convention relates only
to war and not to peace time; and it only deals with the direct
laying of mines and not with their laying by a third party. Albania
was not a signatory and never acceded to the convention.

Nevertheless, Albania admits strictly that it is forbidden to lay
mines in peace time, so that it is sufficient to argue a fortiori.

But in spite of repeated assertions to this effect, it was at one
moment put forward in Court that it was for the author of the
minelaying, and not for a third party who learnt of it, to give
the notification, so that if the latter party failed to do so he would
not be disregarding an international obligation.

It is true on the other hand that an agreement between the
parties on the facts is valid, even though an international court,
having more freedom in regard to evidence than a municipal judge,
might make reservations ; such an agreement would be quite inad-
missible in regard to the law to be applied.

Thus, even if an accession by Albania to the convention in
question might certainly be considered as reasonable, this accession
could not retroactively render unlawful an act already accomplished.

10.—The limitation of responsibility to the contractual sphere
is also in line with the claim which has already been mentioned :
that this doctrine abolishes the subjective element in responsibility ;
i.e., the non-execution of a contractual obligation connotes, by
itself, the existence of cu/pa, so that a debtor can only clear himself
if he can prove the existence of an external cause ; yet one may
still consider that culpa itself is absent.

But that is not the right road. We must re-establish in inter-
national law the two sources which are essentially one : contractual
culpa and delictual culpa, even if we continue to distinguish, in
both sectors, between cases of conduct definitely indicated in

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DISSENTING OPINION BY JUDGE AZEVEDO 85

advance and cases depending simply on a general rule of prudence
(HENRI and LÉON MAZEAUD, Traité de la Resp. civile, Paris, 1948).

Attempts to reconcile these two criteria—that of precise rules
and that of a general standard of conduct—will never succeed, as
became evident at the Hague Conference in 1930, in spite of the
interminable discussions which took place in the Third Committee.

Codes of obligations make no attempt to enumerate prejudicial
acts ; but it must be recognized that men are subject to a standard
of conduct and are responsible if it is disregarded. In the same
way, States must respect a certain level of conduct among them-
selves, determined by the conditions of international life at any
particular period of history.

Even in the absence of any convention one could not admit that
such an act as secret minelaying in time of peace does not involve
the responsibility of the State concerned, for it is an abnormal and
extraordinary act which would even constitute a crime when a world
criminal jurisdiction has been organized. The community could
not continue to exist if an act so definitely characteristic of
criminality—whatever may be its conventional definition—were
to go unpunished.

It would constitute a formal infringement resulting from the
actual danger, and any country could demand the condemnation
of the author of such an act, dangerous to shipping, even if it could
not claim reparation for damage actually sustained. At the very
least, in order to defend the interests virtually endangered, the
judgment should order the clearance of the mines at the cost of the
author, just as in domestic law a judge would order the demolition
of a wall built in the wrong place.

11.—Again, one must take account of the subjective element,
even if one is disposed to push international responsibility to the
point of risk by giving it a truly objective character.

It is indisputable that a condemnation founded on moral elements
of culpability, coexisting with the breach of an obligation, would
be more in accordance with the promptings of man’s conscience,
and the conscience of humanity.

The notion of culpa is always changing and undergoing a slow
process of evolution ; moving away from the classical elements of
imprudence and negligence, it tends to draw nearer to the system
of objective responsibility ; and this has led certain present-day
authors to deny that culpa is definitely separate, in regard to a
theory based solely on risk. By departing from the notions of

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choice and of vigilance, we arrive, in practice, at a fusion of the
solutions suggested by contractual culpa and delictual culpa.

And so, without prejudice to the maintenance of the traditional
import of the word culpa and to avoid the difficulty of proving a
subjective element, an endeavour has been made to establish
presumptions that would simply shift the burden of proof as in the
theory of bailment in which a mere negative attitude—a simple
proof of absence of culpa on the part of a bailee—is not sufficient.
The victim has only to prove damage and the chain of causation ;
and that is enough to involve responsibility, unless the defendant
can prove culpa in a third party, or in the victim, or force majeure ;
only these can relieve him from responsibility.

This tendency has already invaded administrative law (notion
of faute de service) and a fortiori must be accepted in international
law, in which objective responsibility is much more readily
admitted than in private law.

Accordingly, on the subject of territorial seas, even if a State
is not bound to remove natural difficulties due to the accidents of
geography, it is contended that it must have regard to what relates
to human intervention, e.g., the maintenance of lighthouses, save
in the exceptional cases mentioned above. On the other hand,
it is for the defendant to show that the burden of proof has been
shifted.

In spite of some doctrinal remarks in the opposite sense, the
Italian Court of Cassation, reversing the decision of the Savona
Court in its judgment of December 19th, 1906, held the State to be
responsible for the imperfect functioning of the lights which it
provides for shipping (Rev. int. de Dr. marit., 1907, pp. 466
and 711).

12.—As regards imputability, in the present case one must begin
by considering the hypothesis of a deliberate action, inspired by
malicious intent, though it must be emphasized at the outset that,
in spite of the gravity of the offence, it is not the penal law which
is being applied.

It often happens in municipal law that a judge in a civil case
has to find facts which are also of a criminal nature, without
imposing penalties ; this accounts for the anxiety of legislators to
reconcile the action of parallel tribunals, the criminal factor always
prevailing over the civil factor. In the sphere of international
law, there is no danger of encountering this contradiction.

Since the mines could not have been spontaneously produced,
they must have been laid either by the Parties, alone or with the

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help of others, or by other States acting on their own initiative and
for purposes favourable or unfavourable to the Parties.

The United Kingdom accused Albania of having laid the mines
and has never really abandoned this hypothesis. On the other
hand, Albania at times made vague insinuations against the United
Kingdom, but at the last moment abandoned any accusation of
that nature.

The suggestion that the United Kingdom laid the mines, put
forward without much conviction, was devoid of substance.

Next we have the suggestion, often made, that the mines were
laid by a third State, an enemy of Albania which was trying to
involve her in difficulties with a great Power.

This insinuation cannot find any explanation that satisfies the
most modest requirements of common sense. Even if it be taken
in a concrete way as referring to a country which was an enemy or
adversary of Albania, the insinuation is no more comprehensible.
There is not a single indication of the sort ; not the slightest rumour.
But on the contrary, counter-indications such as the British super-
vision of the squadron of that country and the moral impossibility
that that country should desire to cause serious damage to an ally
or friend.

The imputation that the mines were laid by Albania would also,
in principle, be hard to accept, although despair, or the desire for
vengeance on the part of inexperienced persons, groups or peoples
may lead them to forget their own interests and to adopt desperate
methods, if such methods seem to them the only way of securing
respect for measures which they regard themselves as free to adopt.
Daily struggles against neighbours would certainly tend to increase
the desire to take such action.

An act that endangered the shipping of the whole world, merchant
and war vessels, friends or enemies, and that might affect
nationals, would almost resemble self-mutilation. Perhaps, in
view of the facts, the danger to coastal shipping or fishing boats
would not be great, for only ships of 12 feet draught could hit
the mines; but all the possibilities of every-day life can never
be imagined.

13.—We must however reject the theory that Albania laid the
mines herself because she not only lacked the means but also th
mines. In the Security Council it was not believed that she could
have done so ; the majority of the Members thought that the mines

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had been laid with Albania’s knowledge.

But the impossibility of laying the mines would not exclude all
consideration of culpable intention, for the act may have been
carried out by another country bound by ties of friendship to the
Parties and acting as mandatory..

True, it is very difficult to accept the theory that a mandator
can be responsible unless the mandatory is identified, especially
when the number of possible authors of the act is extremely limited.

Yet, such a suggestion was made as against Albania and during
the proceedings was transformed into an accusation : first, in the
Reply, in the form of a question, then before the plenary Court
with detailed particulars.

14.—Thus, it was alleged that the mines had been laid by a
third State, not on its own initiative but in the interest of Albania.

Towards the end of the hearings, the United Kingdom considered
a number of possibilities, but none of them would justify us in
thinking that in doing so it admitted, even conditionally, that
Albania was exculpated by the fact that her neighbours had laid
the mines without her request, her connivance, or even her know-
ledge.

The situation of a country regarded as the protégé of another,
and in its debt, owing to treaties and agreements, would not suffice
to interchange the parts played by them if it were suggested that
the mines were laid to serve the interest of the nation which,
although the weaker State, would in this operation continue to
be the mandator and never the mandatory.

A radical change in the presentation of the facts was brought
about by the evidence of a former naval officer who emigrated in
October 1947. He alleged that the mines had been loadedina
certain port on two small minesweeping vessels which were sent to
Corfu a few days before October 22nd, 1946. This story, considered
in abstracto, would be very relevant to the facts calling for explan-
ation; for GY mines are not a form of merchandise that could
be ordinarily transported in the neighbourhood of Corfu.

However, the substance of the documents in which this accusation
was made was brought to the knowledge of the third State, and
the latter was content to publish a communiqué the text of which
was filed with the Court by Albania. This downright refusal
was not accepted by the United Kingdom, which proceeded to
furnish new arguments and evidence in support of the witness’s
statement ; this made Albania periodically produce a number of
other documents.

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DISSENTING OPINION BY JUDGE AZEVEDO 89

Of course, a State which abstains from intervening in a case and
thus escapes the possibility of a decision adverse to itself could
not thereby claim to be declared innocent ; nor even to enjoy a
privileged position vis-à-vis the parties investing it with a right
of veto in regard to the examination of documents which were
in truth documents of the accused party.

True, the assertions made by States parties to the case or even
by third States must be accepted whether supported by documents
or not, provided that there is no proof to the contrary, for such
assertions do not enjoy absolute immunity; if they possessed
an intangible character, international justice could not advance.

For instance, it must be considered regrettable that the existence
of certain vessels was denied, though afterwards it was acknow-
ledged that they existed, though with different names.

The introduction of such subtle denials is calculated to weaken
the strongest arguments. A complete denial is always preferable
to a series of statements giving partial explanations with a risk
of contradictions ; as for instance, the evidence that certain ships
were not in a condition to navigate at a particular date.

Moreover, the searching criticism to which the ex-officer’s
statement was subjected brought out, on the one hand, the
improbability of almost all its elements: the contradiction
between the details related and the ordinary data omitted; and
on the other hand the general explanation of the operation, coin-
ciding with the possibilities of its accomplishment.

We are bound in any case to recognize the inadequacy of a proof
based almost entirely on one witness whose statements were
inadequate on many main points.

Other grounds for the rejection of this version were for example
the insufficiency of evidence as to the possession of GY mines
by the Power supposed to have been the mandatory. The state-
ment made regarding the swastika mark on the mines is also
not of a decisive character, because the Germans themselves
may have made use of this mark, which was not as a fact mentioned
in the reports of the British authorities and was only revealed
by a photograph, without convincing evidence in its support.

Finally, it must be observed that a State with great experience
would not likely risk provoking a casus belli with a great Power ;
even if it felt resentment against the latter, it would have chosen
more acceptable methods than that of allowing itself to be used for
such a serious purpose, so easily discovered, for hundreds of persons
would have been in the secret ; and advantage there would have
been none, as is shown from the allusions of the Parties to the old
saying cut prodest.

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DISSENTING OPINION BY JUDGE AZEVEDO go

15.—And even if the participation of a third country was
evident, the condemnation of the respondent could still not be
founded on that fact.

A municipal court has jurisdiction over every citizen and can
declare that a certain act has been committed by a third party, a
stranger to the proceedings, though it is bound to act with caution
and must always reserve the economic and moral rights of such a
third party, as the decision will not affect him except in the case
of complicity.

But an international judge cannot act in the same way ; for his
jurisdiction is based on the will of the parties, either directly or
indirectly, in virtue of Article 36 of the Court’s Statute ; this renders
a mere allusion to the acts of a third State inadmissible. A country
which is not a party to the case and has not been summoned
remains unaffected not only by the judgment itself, but by an
incidental mention of it as mandatory or as performing an
unlawful act. |

No doubt the United Kingdom’s position was difficult, for she
could not, either at the beginning or during the case, bring before
the Court a country which had not accepted the Optional Clause
and was not at all in the same position as Albania, who was bound
by the Security Council’s decision to accept the Court’s jurisdiction.
It was also useless to suggest a special agreement to the third State,
in the course of the procedure, especially if the said State, having
obtained communication of the documents, took no steps to
intervene in the proceedings.

In any case, the Court could not extend the limits of its jurisdic-
tion, nor could it do so implicitly by expressing opinions 7 concreto
regarding the conduct of a third State, no matter in what sense.

16.—Accordingly, after eliminating all the conceivable hypo-
theses, we are obliged to conclude that the laying of the mines was
the work of an unknown author. But Albania could nevertheless
have been aware of the existence of the mines, and a State which is
informed of a prejudicial act committed by another and does
nothing to prevent it incurs the same responsibility on the ground
of the unlawful act, without any attenuation; even if it was unable
to prevent the dangerous consequences it was none the less obliged
to make known the danger.

But how can we satisfy ourselves as to a fact which cannot be
directly verified ?

A condemnation, even to the death penalty, may be well-founded
on indirect evidence and may nevertheless have the same value
as a judgment by a court which has founded its conviction on the
evidence of witnesses.

It would be going too far for an international court to insist
on direct and visual evidence and to refuse to admit, after
reflection, a reasonable amount of human presumptions with a

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DISSENTING OPINION BY JUDGE AZEVEDO OI

view to reaching that state of moral, human certainty with which,
despite the risk of occasional errors, a court of justice must be
content. ’

17.—Certain other presumptions have been raised against
Albania which are definite, though not of equal force. First,
her passive attitude after the discovery of the mines, which ought
to have led her to protest energetically. But she declared that
these facts had nothing to do with her, and her immediate and
reiterated complaints to the U.N.O. were a reasonable counter-
indication ; those who have something to fear do not generally
ask help from the authorities. .

The absence of signals on October 22nd may also be explained
by the uselessness of a warning which had already been rejected
in advance by the note of August 2nd.

In the same way, her opposition to the sweeping cannot be
exaggerated into fear of discovery of the corpus delicti, Albania
having raised objections only to protect her sovereignty over her
territorial waters.

Here we come to an argument which the Parties had used for
directly contrary purposes : the possibility that Albania might get
rid of the mines before the operation of November 13th. But
such a hypothesis is not admissible, for, besides the great uproar
caused by the events of October 22nd throughout the whole world
there would certainly have been the discreet watchfulness of the
United Kingdom. Besides, the operation would have been much
more difficult than the laying of mines, even if the exact number to
be swept were exactly known.

18.—There are however other indications which can be regarded
as definite, certain and concordant.

Thus, there is the possibility of the minelaying having inevitably
been seen from the land; the Experts’ last report has much
increased the probability of this, whether there was a look-out
post at Denta Point at the time, or even if there was not.

On the other hand; Albania claimed to prohibit strictly any
passage of a foreign ship in the zone where the minefield was ; and it
might be admitted that the incident of May 15th was, by anticipa-
tion, an application of the doctrine publicly announced a few
days afterwards, and applicable even to merchant ships, e.g., the
U.N.R.R.A. tug. The application of the United States to send
destroyers to take away its military mission which was leaving
Albania was made the subject of a complaint by the latter to the
U.N.O.

The existence of secret military orders, not communicated to
the Court, might be considered as supporting this view; so
might also the somewhat inexplicable remark in the note of

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DISSENTING OPINION BY JUDGE AZEVEDO 92

October 29th: “The Albanian Government will take no respons-
ibility if this operation is carried out in its territorial waters.”

Strictly speaking, it might be held that under ordinary circum-
stances, the Albanian Government could not have had no part in
the laying of the mines, or at any rate could not have been unaware
of the fact.

In spite of all, though the conclusions of the Expert enquiry
covered a number of hypotheses, the author, the time and the
method of the minelaying continue to be unknown.

The absence of any such explanations makes it very difficult to
express a definite opinion regarding Albania’s cognizance of facts
of such uncertainty ; we cannot therefore be regarded as over-
prudent if we hesitate to declare that in this case Albania mani-
festly acted in bad faith.

The existence of similar doubts was revealed in the Security
Council when that body accepted the proposal of the French
representative to replace the words ‘‘with the knowledge” by the
words ‘‘without the knowledge” ; although this was not a judicial
decision, the alteration was something more than mere courtesy
(122nd Meeting—March 25th, 1947, p. 596).

19.—Moreover, a declaration of such gravity is in no way essen-
tial for the success of a claim of an exclusively pecuniary character.

Once the inadequacy of the evidence enables us to refrain from
stating that Albania was indisputably cognizant of the laying of the
mines, the same rule of relativity applies as regards a statement
that Albania was unaware of the fact. True, it is not possible to
prove it, but nevertheless one can examine whether Albania ought
to or could have had cognizance of the matter.

Even if it is not possible to clear up the mystery and to discover
the authors of the act, or those who were aware of it but did not
warn shipping, one must not give up hope of compensating the
victim without having first considered every other method of
giving him satisfaction, except on the ground of an intended wrong,
first on the ground of unintentional culpa and finally on the ground
of presumed or merely objective responsibility.

The victim retains the right to submit a claim against one only
of the responsible parties, in solidum, in accordance with the choice
which is always left to the discretion of the victim, in the purely
economic field; whereas a criminal judge cannot, in principle,
pronounce an accomplice or a principal guilty without at the same
time establishing the guilt of the main author or the actual per-
petrator of the offence.

20,—In examining the case from the standpoint of culpa, whether
by action or omission, one is struck in the first place by the weakness

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DISSENTING OPINION BY JUDGE AZEVEDO 93

of the Albanian defences along a deserted coastline many kilo-
metres in length, with a few centres of population which are
unprovided with easy means of communication.

A long and detailed discussion took place on the efficiency of
the coastguard and the possibility of minelaying being unobserved
by the population and especially by the guards. Much was said
of the facility of such an operation, the methods and the time taken ;
but it would be difficult to reconstitute all the details of an event
which might have taken place on an unknown day, or rather night.

The Experts endeavoured to clear up matters by trying to
indicate conditions similar to those that might have been found in
the district at that time ; but in the realm of the conditional there
is always a risk of error.

To sum up, the slender arguments of the defence have in no way
excluded the fact of a jealous and mistrustful watch over all that
happened in the Channel; events of minor importance were the
subject of reperts and international denunciation. Minelaying,
however rapidly done, and however skilful the crew, would very
probably have been observed.

It has been suggested on the other hand that the minelaying
might have been carried out by a ruse, with all lights on. But
that would surely have attracted attention ; on October 22nd the
lights of the vessels were followed for a long time.

Even if we exclude all possibility for Albania to increase her
defences in men or material, it ought to have been recognized
that Albania, in any case, failed to place look-out posts at the
spots considered most suitable when the coast defences were
organized about May 1946. Albania must therefore bear the
consequences. The Experts’ last report made clear to the Court
the accessibility of Denta Point from the sea, at any rate, and thus
did away with the reasons for the absence of the look-outs which
has been commented on.

The assertion by Albania that the watch was insufficient or
ineffective or badly kept goes against herself, even if the purpose
of this watch was something quite different, namely to stop incur-
sions by neighbours. It should be noted, also, that this aim would
be incompatible with the prohibition of passage to all other coun-
tries ; the general character of this announcement has certainly
aggravated Albania’s responsibility towards third States.

In this connexion, we must not risk contradicting ourselves ;
the fact that the watch was normal, or even exceptional, was justly
invoked as an argument favourable to the existence of culpa, i.e.,
cognizance of the mines; but this circumstance would also serve
as a proof of mere negligence if the presumptions were not sufficiently
strong to warrant a more serious charge.

93
DISSENTING OPINION BY JUDGE AZEVEDO 94

21.—This being so, the possibility of negligence on the part of
the coastal Power, involving that Power’s responsibility, cannot
be set aside; this responsibility would even be increased if we
consider the facts in the light of the new principles concerning
culpa referred to above.

Thus, for example, though the laying of the mines might be
regarded as an event that could not be foreseen by the coastal State,
it would certainly not fulfil the other condition that is requisite to
comply with the description of force majeure or an act of God, that
of inevitability.

It matters little that the guard maintained may have had other
objects in view, once it is admitted that it would have sufficed to
discover the operation and to drive off the perpetrators by the
same means which were used with the object of driving off the
British ships on May 15th, namely by firing with the guns facing
the spot where the minefields were discovered.

No doubt Albania might have put forward one solid argument
when confronted with the theory of culpa or even of risk : the fact
that she had been excluded from the work of mineclearance in her
territorial waters when she was refused a seat on the mineclearance
boards and this security task was transferred to others. That was
the ground for the vote of the Syrian representative in the Security
Council, refusing to admit the responsibility of Albania which seven
ether Members had admitted. He stated that, in the particular
case, the duty that every sovereign State had to possess the means
and the capacity to protect its territory and to make its channels
of communication secure was non-existent owing to the war.

Eat the case was presented to the Court under a different aspect,
ior Albania agreed that a new minefield had been laid. There
\was no longer a responsibility for failing to sweep mines—a task
from which Albania had been excluded— but for the laying of a new
rainefield at a time when Albania was exercising full sovereignty
ca was herself guarding her own coastline.

é.ccordingly, in this case, there is no need to speak of risk ; the
presumption of culpa is sufficient and is quite in its place in a
case of recognized and admitted vigilance. If looked at im conereto
cz from the average standpoint of bona ves publica the conclusion is
the same.

The foregoing considerations lead us to conclude, although this
is a case in which the author is uncertain, that, in international
law, Albania is responsible.

22.—It is of small importance that this is a case of a quasi-delict ;
for the argument majus ad minus would fully justify a conclusion

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DISSENTING OPINION BY JUDGE AZEVEDO 95

(quite in conformity with the lits contestatio, or rather special
agreement) in which the purpose of the claim is compensation ;
this becomes even clearer when we compare it with the counter-
claim.

No misinterpretation of the causa pelendi could cause it to be
given another legal name than that proposed by the Parties. The
Court might give this name to the same facts as have been alleged
and proved in these proceedings, either to reach the same conclusion
as the Parties have proposed or, for instance, to reduce the amount
of damages or of the penalty. Only if it kept to a form more
rigid than that of the legis actiones, or similar system now aban-
doned, could the Court think of prohibiting such a solution.

The principles which, at this moment, govern the system of
every procedure could only be interfered with if the applicant laid
down, as a conditio sine gua non for the success of his suit, a finding
of criminal intent. In that case, the exceptio res judicata would
not operate in regard to a new claim founded exclusively on culpa.

In this case, on the contrary, Great Britain has not failed to
allude to the doctrine of simple risk and has even claimed its
application.

23.—If the existence of a culpable intention had been admitted,
there would be no room for justification or attenuating circum-
stances ; such a brutal act could not be justified on any pretext.

The disproportion observable in the reaction would persist
even if something like a praeterintentional delict were involved,
e.g., the author could not expect that the vessels would pass that
way perhaps because he thought the minefield was outside the
swept channel. Nor can much attention be paid to the fact that
the mines would have been laid to damage particular individuals,
while the risk of damage to a third party existed, as would be
the case. Criminal law does not admit of a reduction of sentence
in the case of aberratio ictus.

24.—But whether culpa or risk is the criterion, the conduct of
the victim can be taken into account by reducing the degree of
responsibility and consequently apportioning the damages.

Needless to say, damages are not in any way a penalty and
cannot therefore be increased or diminished according as the
conduct is estimated as gravissima or levissima culpa. Courts
of justice always arrange to examine the culpa in concreto, in esti-
mating the loss to be made good.

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DISSENTING OPINION BY JUDGE AZEVEDO 96

International justice also is subject to this moral influence
which GEORGES Riprrt mentions several times.

As J. PERSONNAZ points out (La Réparation du Prejudice au
Droit international public, Paris, 1938, pp. 106 ef sgq.), international
tribunals have often taken into consideration the degree of gravitv
of offences, negligence or the culpa of the victim, and have modified
the damages accordingly. Arbitrators have several times made
very clear declarations of principle on the point : e.g., the British
Commissioner in the Alabama case (Rec. LAPRADELLE and POLITIS,
II, 825), who considered that reparation should not only be
proportionate to the loss caused by the culpa, but also to the
gravity of the culpa itself ; or the arbiter in the Delagoa Bay case,
who held that the culpa of the victim justified a reduction of the
compensation (LA FONTAINE, Paster. int, p. 307).

In this case, several circumstances mentioned above or recorded
in the counter-claim might, if the case arose, reduce, to a certain
extent, the amount of the reparation. This would no doubt be
incompatible with a condemnation based on the wrongfulness
of the act, but it would be applicable to any one guilty of an act in
the nature of an error.

25.—.As regards the assessment of the reparation, it must be
remembered that the application was replaced by a kind of novation
in the Special Agreement, which modified the normal course of
procedure.

It is true that a renunciation cannot be presumed; but in a
case of novation, an express reservation must always be made,
as in the case of a guarantee for a debt.

Moreover, the United Kingdom knew the two possible solutions
exactly : the solution which it had proposed in the Security Council :
a simple declaration of responsibility, reserving a subsequent
settlement ; and that which it preferred in bringing the matter
before the Court: a claim for a fixed sum in damages. Now,
when drafting the Special Agreement, Great Britain chose the
first method, and therefore cannot claim to come back to the
second, and to rely on a mental reservation supported by vague
references in the other documents, and set up again, at the last
moment, by a definite allusion to the assessment of damages.

It is not exactly a question of competence, but of determining
the content of the peñitum.

A comparison between the claims set out in the Special Agreement
also shows that, in both cases, a reference was made to respons-
ibility and to reparation, only in order to point out the difference
in their nature. The United Kingdom had in view only a monetary
reparation, and Albania a different reparation of a purely moral
character. Thus, the clause was not purposeless, but the giving

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DISSENTING OPINION BY JUDGE AZEVEDO 97

of a definite indication was deliberately avoided, both as regards
the nature of the moral satisfaction, and as regards the amount
of the material compensation.

Moreover, if any doubt subsisted, it would not be dispelled by
an interpretation unfavourable to the debtor and in favour of the
negligent creditor.

26.—One might also emphasize the necessity of adding something
to the declaration of responsibility, in order to avoid an inter-
pretation that would render the Special Agreement ineffective. In
other words, an endeavour would be made to give practical effect
to the clauses adopted by the Parties.

But it must be pointed out that the Special Agreement consists
of a simultaneous filing of two claims, mutually submitted by the
Parties, and of a purely declaratory nature.

In municipal law, awards are as a general rule executed by
compulsion, and formerly a decision void of such effect would not
be admitted—campana sine pistillo. But as procedure has
developed, the existence of purely declaratory awards has come
to be admitted, especially in Germany and the United States:
the applicant is content—for some reason—to have his right
declared, without desiring that it shall subsequently be rendered
effective ; at the same time, however, he retains the right to bring
another action of a purely executory nature : actio de judicato.

But what is exceptional in municipal law is normal in inter-
national law. Decisions against sovereign States were not directly
executory, and were founded only on their high moral value, cal-
culated to secure a voluntary submission. It was the San Francisco
Charter which first provided for giving effect to decisions of the
International Court of Justice by a procedure sui generis, the
extent of which will be determined in each case by the Security
Council.

The adoption of a special agreement must not therefore be con-
sidered exceptional, or useless, or as involving merely the abandon-
ment of a claim. Naturally, it presupposes mutual renunciations,
limiting the effect of the Court’s decision to the main fact of
recognition of responsibility, and regarding essentially the purpose
of international justice as being to declare the right.

Additional matters, such as the estimation of the loss and the
method of payment, have been left by the Parties to other proce-
dures, more favourable to their interests, and to be determined in
the future.

27.—The origin of the counter-claim is Albania’s contention in
regard to passage through the North Corfu Channel. This claim
concerns two different issues : the passage of a squadron through
the Channel, and the subsequent minesweeping.

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DISSENTING OPINION BY JUDGE AZEVEDO 98

The fundamental nature of such a prohibition was certainly
disavowed in the discussion in the Security Council ; and Albania
asserts that she never intended to exclude merchant ships; this
would, however, involve a literal interpretation of the note, and
even the incidents already mentioned. |

After this withdrawal, it must still be considered whether the
measure was lawful or not as regards warships.

The right of passage of foreign vessels through the territorial
sea is founded on freedom of trade, which presupposes freedom of
navigation as the principal means of its accomplishment. But an
opposition between these two conceptions of freedom cannot be
envisaged, even to justify the difference which certain writers
proposed between a simple passage and an entry into ports. No
doubt, any passage leads up to an entry into a port of some country.
But it is undeniable that the two acts are treated differently, and
involve greater or less restrictions on the riparian State. But this
does not do away with the postulate that freedom of navigation
flows from freedom of trade, a much wider economic concept.

From the time of the League of Nations, this problem has been
of exceptional importance owing to the references to it in Articles 16
and 23 of the Covenant, and the setting up of the Committee on
Communications and Transit, and the holding of the Conferences
of Barcelona in 1921 and Geneva in 1923. The idea of the transit
of merchandise is thus of special importance. In the present
system, it is less important ; but it is undeniable that, since the
San Francisco Charter, it has not been essentially modified.

But the position is quite different as regards the passage of
warships, both as concerns the principle and, in many cases, its
application.

No doubt, this transit is also founded on freedom of navigation ;
but here the same means serves different ends. And in conse-
quence we arrive at different conclusions. We must mistrust any
hasty analogy, and reject explanations such as that of FAUCHILLE,
who considered a navy as an accessory to a merchant fleet, just as
in the days of corsairs and piracy.

28.—A number of writers hold that the right only amounts to
what may be described as a tolerance, subject to regulations
somewhat wider than those usually governing technical, health,
and customs matters, and which are also applicable to merchant
ships.

Others, however, favour the view that equality of treatment has
to be accorded.

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DISSENTING OPINION BY JUDGE AZEVEDO 99

On the other hand, the United Kingdom, founding itself on
Article 38 of the Court’s Statute, has contended that custom
prevails over doctrine, though it admits that this Article does not
establish an order of precedence for the different sources of law.

But it is very doubtful whether a customary practice in this
matter can be shown to exist, owing to the vagueness of the prece-
dents. As in the case of possession, these uncertainties are a bar
to the causative and confirmative action of time. And the mere
lapse of time, according to customary law, does not suffice to
establish a title by prescription: in facultativis non datur pre-
scriptio. .

A “lateral passage” through the narrow belt of territorial waters
—as distinct from a passage through such waters on the way to or
from the ports adjacent to them—is not a common occurrence even
for merchant ships, and is exceedingly rare in the case of warships.
Indeed, it may be said to arise only in canals or straits, a subject
which will be examined separately. The notification of an intended
visit to a port is not infrequently additional to the notification of
a simple passage through territorial waters. Indeed, in the present
case, we observe that, in the programme for the Mediterranean
Fleet, separate notice of the intended movements was to be given,
both to Greece and Egypt, while it was indicated that a simple
visit to certain Egyptian ports might be paid by the Commander-
in-Chief.

There would be no valid reason for imposing greater restrictions
on the rights of the coastal State in the case of warships. It would
of course be an abuse of this right if their passage were prohibited
without proper reason, when no danger threatened, simply from a
desire to injure, or even out of caprice or levity.

Permission to pass, something far more useful, which neutral
countries almost invariably grant to warships in war time, has its
origin mainly in the desire to be impartial towards belligerents
and not to forbid acts which are harmless, on condition that they
retain that character. The precarious nature of such permission
is confirmed by the fact that, even in peace time, the passage of
warships through certain straits in which transit is regulated by
multilateral treaties is prohibited or limited.

In short, there are no significant or constant facts which could
justify the assumption that States have agreed to recognize a
customary right of freedom of passage for warships through the
territorial sea. Thus, the vitalizing quality of repeated action,
by means of which such a custom is established, is lacking.

The tendency towards freedom could not be admitted without
reservation in the case of territorial waters, especially for defence
reasons. Reference may be made to the extension of the rights of
neutrals (Annuaire de l’Instit. de Dr. int., Paris, 1910, pp. 37, 91,
etc.), the creation by equidivision of adjacent or contiguous waters,

99
DISSENTING OPINION BY JUDGE AZEVEDO 100

the protected zone under the Alcohol Laws, and the laws relating
to oilfields (see BUSTAMANTE, La Mer territoriale, Paris, 1930, p. 156).

In its Opinion of December 11th, 1931, in the case concerning
access or anchorage in the Port of Danzig of Polish war vessels,
the Permanent Court of International Justice declined to admit
an extensive interpretation of provisions—including those of the
Treaty of Versailles—that were in derogation of general interna-
tional law ; it refused to read a right of free access and sojourn for
warships into a clause which was only concerned with commercial
traffic, imports and exports, matters which fall exclusively within
the sphere of merchant shipping. And the Court declared in its
finding that the Polish claim had not been established. (P.C.1.J.,

Series A./B. 43, pp. 145 et sqq.)

29.—-The United Kingdom invoked the proceedings of the Hague
Conference for the Codification of International Law ; but in doing
so, it was obliged to minimize a large part of the results of that
Conference, on which Albania also relied.

Thus, the United Kingdom contended that the bases of discus-
sion, approved by the Conference purely for the purposes of legal
science, represented a sort of compromise, necessary for the future
interpretation of the rule, and that, on the contrary, a simple
observation, adopted at the last moment, had more weight than
the “‘bases of discussion” to which it related. Whatever may be
the justice of these conclusions, a study of the discussions and
documents in the valuable Reports of that distinguished Inter-
national Law Conference might lead to conclusions of a different
character. The preliminary report, for instance, emphasized the
confusion in the replies concerning existing law and those concerning
lex ferenda (L.N., C.74, M.39, 1929, p. 7).

The first drafts prepared in 1926 by SCHÜCKING, former Judge
at the Permanent Court, and an upholder of the right of free passage
for warships, might leave doubts, when we compare Articles 7
and 12. The first of these reserves only the right of sojourn for
warships, and Article 12 deals with all matters of passage
(L.N., C.196, M.70, 1927, pp. 59, 62 and 72) ; the result of a second
consultation of States by means of a questionnaire adopted by a
Revision Committee, was the same (IX and X, L.N., C.74, M.30,
1929, p. 105). Only after further replies had been received was
the clear difference between these two cases (bases rg-and 20)
recognized (L.N., C.74, M.39, 19290, pp. 71 to 75). It was retained
and accentuated during the discussion and approval of the draft
by the Second Committee.

A study of all the replies to the two series of questions would
not justify us in concluding, outright, in favour of equal treatment
for both categories of ships. For very few States replied definitely
in favour of that view.

100
DISSENTING OPINION BY JUDGE AZEVEDO ror

For instance, there were not only two countries, Bulgaria and
Latvia, that opposed the right of free passage of warships ; other
States also expressed a similar opinion in their replies, or during
the discussion. Great Britain felt it was necessary to destroy the
radical and coherent attitude adopted by the United States at this
Conference. Yet it is difficult to see how the written and spoken
arguments of the American representatives, founded on the notion
of menace put forward by EzIHu Root and upheld in the prelimi-
nary studies of the Harvard Law School, could be demolished by
third parties, however excellent their arguments.

Great Britain’s attitude was not very clear either: in the pre-
liminary replies (doc. cit., pp. 67 and 74), Great Britain alluded
to rules submitted to the Conference, the non-publication of which
is regretted by GIDEL (Dr. int. publ. de la Mer, Paris, 1934, t. 3,
p. 283) : and in the discussion she asserted that the proposal for
a mere tolerance, submitted by the United States, did not differ
from the British proposal for the maintenance of the status quo
(L.N., C.351, M.145 8, 1930, pp. 62-3). Such is the impression
left in the minds of the writers who commented on the discussions
at The Hague: e.g. BALDONI (Jl Mare territoriale, Padova, 1934,
p. 94, n. I), and JAUREGUIBERRY (La Mer territoriale, Paris, 1932,

. 92).

P Differentiation between the two cases continued to be the basis
of the Conference’s work, and it reappearsas a leitmotiv in the draft
proposal ; the difference between the French and the English texts,
though often referred to, was disregarded.

The rapporteur himself pointed out that Article 12, concerning
the passage of warships, corresponded to what was generally
recognized as the law at that time.

30.—Similarly, a study of the domestic laws of various States
—although most of them make a distinction between simple passage,
sojourn in territorial waters and entry into ports—does not convey
an impression clearly in favour of freedom of passage for warships,
even if a large margin is allowed for the always dangerous argument
a contrario sensu,

To sum up, it is evident that all the arguments invoked are
clouded in confusion, at any rate sufficiently to bar the recognition
of a custom in accordance with traditional requirements.

In short, the passage of warships through territorial waters is
subject to a precarious régime which may be modified, in a reason-
able manner, by the coastal State,

It is a régime analogous to that adopted for air traffic, in which
a passage over foreign territory, although more dangerous, is
infinitely more necessary than a passage through a strip of terri-

LOI
DISSENTING OPINION BY JUDGE AZEVEDO 102

torial sea of three miles. The tendency is to allow free passage
for commercial aircraft, but to deny any such right to military
planes, in regard to which the territorial State may act as it
thinks fit.

31.—The terms of the basis of discussion approved at The Hague
in 1930 also retain the reservation for exceptional circumstances,
which is admitted by those who claim an actual right of passage
for warships, or who place them on the same footing as merchant,
ships. What may be an abuse in normal times is made lawful
by circumstances.

Thus, insistence on authorization or prior notification, which is,
in general, excluded from the text, would be justifiable in cer-
tain circumstances ; for instance, in a state of war, which in fact
is a great handicap to the movements of merchant ships, as
BRUEL has mentioned several times.

Then there are the cases of tension between neighbouring coun-
tries, to which GIDEL alludes, when frontier incidents are con-
stantly occurring ; and these may well justify the action of a weaker
State, alarmed by the territorial claims of another.

Similarly, absence of diplomatic relations must be recognized
as sufficient ground for refusing leave of passage ; since this pre-
supposes the existence of good relations. BUSTAMANTE has
specially emphasized this point (op. cit., para. 173). GIDEL
supports him, in spite of the silence of the Hague Conference on
this subject (op. cit., p. 285).

The laws of certain countries only grant passage to countries
at peace (France, October 29th, 1929, Art. x), to ships of friendly
countries (Bulgaria, November 4th, 1922, Art. 1), or even to vessels
of recognized foreign Powers (Belgium, December 30th, 1923,
Art. 2).

The United States established by proclamation a general
prohibition of passage for French and English vessels, save in
distress or with special permission, following on the rupture of
diplomatic relations with France in 1793, and with England in
1815.

In the Landwardéw-Kaisiadorys railway case, the Permanent
Court of International Justice, in giving its Opinion of October 15th,
1931 (P.C.I.J., Series A./B. 42, pp. 108 ef sgqg.), took account
of the existing abnormal nature of political relations between
Poland and Lithuania in time of peace, having regard to the terms
of the Barcelona Convention on the subject of the safety or vital
interests of the countries which were bound to facilitate transit.

Belgian law (Art. 11) and Netherlands law (October 30th, 1909,
Art. 14) allude to any other exceptional circumstance.

The United Kingdom stated that it would be willing to admit
that certain events might prejudice what it regarded as an

102
DISSENTING OPINION BY JUDGE AZEVEDO 103

undoubted customary right ; but at any rate it refuses to admit
that the coastal State should be the sole judge of the soundness
of these reasons.

But the Belgian law (Art. 11) states definitely that the country
entitled to benefit by the reservation is alone entitled to regulate
its application; and the Italian law (May 28th, 1928, renewed in
1933) and that of Yugoslavia (June zoth, 1924) provided for
abolition of the tolerance without reason given. BALDONI (0.
cit., p. 93) alludes to revocation ad nutum, and RÆSTAD (La
Mer territoriale, 1913, p. 173) considers revocation as an unfriendly
act, but not contrary to international law.

It does not matter that insistence on authorization is equivalent
to prohibition ; this is a consequence provided for in the laws
that have been examined, in doctrine, and-in Article 12 of the
Hague draft. Regulation exists normally at all times, and it is
opposed to the principle of exception, to which may be added
previous permission ; on the other hand, it would be useless to
provide for modifications in abnormal circumstances.

Abuses may no doubt occur; but there are methods of judicial
settlement of international disputes to overcome them.

In the present case, it is beyond dispute that Albania was not
on friendly relations with her neighbours to the South, and that
no diplomatic relations existed between her and Great Britain.
But if Albania acted wrongly, it was a fait accompli, the withdrawal
of which could only be sought by peaceful means.

Lastly, we need not concern ourselves with the form of the
regulation ; for it is not subject to any rule ; only the Italian law
(cit. Art. 9) indicates the method of publication. But if exception
were taken to an anticipated application of the measure, an
objection could only be made after the notification of the prohibition
and its receipt. The same applies to the absence of grounds in
the notification itself; for the grounds were made clear in the
diplomatic correspondence, and were not disputed.

32.—Are the above conclusions affected by the fact that the
territorial waters form part of a strait ?

In the conflict between the interests of the community and those
of special groups—a conflict which underlies maritime law-—the
balance has frequently wavered between argument and counter-
argument: the controversy between mare liberum and mare clausum
is not yet closed. And certain points have been left behind in the
course of the evolution, such as the King’s Chambers in the Stuart
period, and, in our day, what are known as historic bays.

The predominance of the general interest weighs down the
balance against the coastal State, when, by some geographical

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accident, a part of its maritime territory constitutesa strait. Forthe
advantage of the world as a whole, it has to suffer a sort of expro-
priation, for which no compensation is offered, but which is of course
limited to what is essential for the public good. BRUEL speaks of
an international mandate or of negotiorum gestio. (International
Straits, Copenhagen—London, 1947, Vol. I, p. 254; Vol. 2, p. 424.)

Law constitutes a system of adjustment, and in it motives are
appraised by the same process within a single country and between
different countries. As a result, there are frequent appeals from
international law to the rules of private law, which are more precise
and are technically very rigorous.

For instance, there has been much controversy in regard to this
transfer of principles from the theory of rights in real property,
and especially from the notion of servitudes. But the extension of
their fundamental rules is not to be doubted. Take, for instance,
the right of ownership; it is only subject to limitations in cases of
necessity (enclave, etc.). Consequently, the settlement of other
cases—relating not only to the superfluous, but also to the useful—
is left for agreement between the parties concerned. The field
of exception, and consequently that of interpretation civiliter uti,
still remains.

Similarly, one cannot with impunity restrict the rights of a
State without adequate grounds, whether such rights are derived
from the principle of sovereignty or not. The existence of public
necessity cannot be deduced from the private interests of third
States, whose requirements may be above the average—as has
happened in history—but it must be founded on an impartial
balancing of advantage and disadvantage in general, by which the
burdens thrown upon the coastal State, by reason of a mere geo-
graphical accident, may be assessed.

33.—This shows the extreme importance of the problem of
straits. Some writers consider that the wide differences between
one strait and another prevent the adoption of any general rule.
The situation of the chief straits and artificial channels is already
governed by special conventions, and new measures will have to be
framed to deal with cases that may be found to be of importance
in the future. According to this theory, often referred to at The
Hague, all other straits will be subject to the normal rules applicable
to the territorial sea. Opposed to this is another rule, equally
radical, that all straits are subject to common rules forming part
of a general régime applicable to straits—a régime that is only
supplemented by more detailed rules for individual straits in the
more important cases.

The most reasonable solution is nearly always to be found in a
middle course. The ideal would be the adoption of a general
régime for straits of a certain kind, supplemented by special rules
for individual cases ; while ordinary straits would be dealt with in

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DISSENTING OPINION BY JUDGE AZEVEDO 105

accordance with the general principles for the use of the territorial
sea.

34.—But before reaching a conclusion, we must emphasize the
connexion between the question of straits and that of the territorial
sea. The passage of merchant ships through any strait is merely
a particular case covered by the rule for the territorial sea,
and no problem arises. Merchant ships can use a strait without
having to show that they obtain advantages from the use of that
route.

Decisive proof may be found in the fact that straits were not
dealt with in the preparatory work of the Hague Conference, save
as regards the method of dividing territorial watérs between two
coastal States. It is only when the distinction came to be drawn
between merchant ships and warships that the need of settling
the problem regarding the latter arose.

The question is not only one for warships. Here we are no
longer dealing with the simple application of a general principle ;
for the notion of freedom of transport is divorced from the commer-
cial purpose with which it is normally related. And as this notion
of freedom loses much of its significance and prestige when invoked
for requirements of a different kind, we shall have to find some
other criterion by which to measure it. The place of economic
criteria will have to be taken by geographical considerations, and
an endeavour must be made to find means of communication that
are of reasonable utility.

For this reason, mention is generally made of Gibraltar, Boni-
facio, Hongkong, etc., as being under a special régime, apart from
the straits subject to conventional rules, differing from the ordinary
rules applying to territorial waters.

First, it will be observed that the essential condition for placing
a strait in an international category is that it should be used for
international traffic ; but it would be over-simplifying the problem
to consider only the fact that the strait gives access to the open sea,
and not merely to places in interior waters.

It is essential to examine the circumstances in order to appreciate
the intrinsic importance of each individual route.

Of course, every strait offers a passage that shipping may make
use of ; but conversely, it might be argued that no strait was indis-
peñsable for shipping ; for it is always possible to find some other
route connecting two seas, as happened, for example, before the
Suez and Panama Canals were opened.

But we could not approve unreservedly a restriction of the
rights of the coastal State in order to satisfy all the military require-
ments of third States, even if these requirements were ordinary

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DISSENTING OPINION BY JUDGE AZEVEDO 106

manoeuvres or mere courtesy voyages in which warships might
economize a few hours’ steaming. No other view could be admitted
unless the closing of the strait rendered navigation impossible or
very difficult—conditions which have led to the regulation of the
more important straits and have justified certain other exceptions.

The notion of an international strait is always connected with
a minimum of special utility, sufficient to justify the restriction
of the rights of the coastal State—which rights must be assumed
to be complete and equal to those of other States. To PILLET’s
doctrine of least sacrifice, we might add SEFERIADES’ maxim:
‘The greater the use of the passage .... the more extensive become
the infringements of the rights of the coastal States.’’ (Rec. des
Cours, Vol. 34, p. 439.)

A classification of straits in the order of their importance may
therefore be considered as irrefutable. This is shown in several
ways by BRUEL, and a study of other writers leads to similar conclu-
sions, expressed very clearly: main highway, independent route,
shortest and most necessary way, communication between two
free seas, two high seas, highways, only way, etc.

35.—At The Hague, in 1930, this problem was dealt with on
current lines ; but care must be taken lest, by a too hasty perusal
of the terms there adopted, we should be led to include any and
every strait—even those which would render the passage longer or
more difficult—under the second observation relating to Basis 12.

The adoption of the observation to Basis 12 without opposition
gives great weight to it; but we cannot forget the unexpected
manner in which the question was put at the last moment. Stress
must be laid on the words ‘‘serving for international navigation”,
added to the terms previously employed in a number of documents
that referred merely to communication between two parts of the
open sea.

At this point, ScHUCKING referred to the exceptional case of
ships which entered a strait and then found it impossible to return
to their country! (Proceedings of the Conference, Vol. III, 1930,

. 171.)

P BRUEL, who is otherwise favourable to the passage of warships,
refers to the fluctuation that prevents any definite statement on
the one side or the other (op. cit., Vol. I, pp. 202-5).

But the notion of international strait and also the expression
“highway’’, dear to great writers like Oppenheim, and introduced
at the beginning of these proceedings by the United Kingdom,
might be inserted in the 1930 clause.

36.—Can the Corfu Channel be deemed to be a “highway” ?

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DISSENTING OPINION BY JUDGE AZEVEDO 107

À mere glance at the chart shows how difficult it would be to
include it in such a classification, and indeed no qualified author
has yet attempted to do so.

This Channel cannot serve the needs of international shipping,
because it does not shorten the route, and offers no facility for
manoeuvring. So far as the Port of Saranda is concerned, it is of
no use, even for voyages southward. True, it is of value to the
Port of Corfu for northward traffic; but the distance saved by
using it is less than 100 miles. Ina few hours, the Leander steamed
almost round the island, whose southern shore is still fringed with
mines round which she had to pass.

One of the British experts quite naturally told the Court of
important international routes, particularly those leading to the
Dardanelles and coming from Alexandria or Suez and the eastern
Mediterranean.

The artificial Corinth Canal, which unites the Ionian and Ægean
Seas, thereby saving a considerable détour, would be of far greater
importance ; nevertheless, all the authors who deal with it have
described it as a secondary route in the few lines they devote to it.

After October 22nd, proposals were submitted to the Medzon
Board for the establishment of new routes to Corfu, either by
sweeping a channel to the North or by the clearance of minefield
No. 530 to the South ; and in point of fact, the North Channel has
remained closed for more than two years without any serious
prejudice to international traffic.

37.—We must examine whether one last consideration might
not turn aside the normal line to be followed.

There is a sort of condominium over the waters of the Channel,
because one of its shores is Greek and the other Albanian—though
it is not the existence of one or of several coastal States which
confers upon a strait an international status: the Sound is between
two States and the Belts and the Dardanelles are between the coast-
lines of a single State.

The method of dividing the waters of narrow straits is of small
importance, for it does not concern third Powers. On the contrary,
in this particular case, the situation of the Strait, on the frontier
between two States, would justify further restrictions as against
third Powers, unless the latter were able to prove the existence of
special navigational interests.

A reference has been made to a statement by a North-American
technical expert on the Mining Board in regard to the Corfu
Channel; but it must be remembered that the United States
declared at The Hague that they and Great Britain were the only
States concerned in establishing the régime for the Strait of Juan de
Fuca (which is certainly of greater importance than that of Corfu),

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DISSENTING OPINION BY JUDGE AZEVEDO 108

whereas they regarded the Strait of Magellan as essentially inter-
national.

Hype held this doctrine to be abundantly justified, in comparing
the Kiel Canal, which is clearly international owing to its vital
interest to trade, with Long Island Sound or the Strait of Juan
de Fuca, which are reserved for the interests of one or two States
(Int. Law, Boston, 1947, Vol. I, paras. 150 and 155). Sweden
also, in the reply to the Hague questionnaires, claimed similar
situations to that of the Kalmar Strait (L.N., C.74, M.39, r929,
p. 58).

We must not lose sight of proportion. We may, however, conclude
that even the fact of its being a strait cannot be an argument for
the United Kingdom claim; but on the contrary is in support
of the prohibition of passage ordered by Albania, unless special
permission be granted after notice, and having regard to the
abnormal circumstances at the moment.

And as regards the facts—even well separated in point of time—
any tolerance in times past might, by a sort of prescription, create
a right against Albania. |

It goes without saying that this solution could not be applied
in the case of warships of the Power which possesses sovereignty
over the opposite shore of the strait, since there is complete
equality between the States directly interested in the passage of
shipping—even of a non-commercial kind—through the strait.

38.—Even if we regard Albania’s conduct as wholly or partly
unjustifiable, we must disapprove of any intervention designed
to end it, and of any employment of force against force, except in
the heat of violent action as on May 15th.

As such a method of enforcing an erroneous doctrine was abnor-
mal, one might have hoped that those who refused to tolerate it
would refrain from acting in the same way. To answer: vim vi
repellere, would amount to referring the solution of a purely juridi-
cal problem to the arbitrament of force. As the reason of urgency
had ceased to apply, the proper course would manifestly have been
to refrain from effecting the passage.

Apart from legitimate defence, a counter-stroke confestim,
“hot pursuit”, or an emergency, nothing justifies the use of force,
not even the pretext of reprisals. One violation does not justify
another, outside the lex fulionis.

It would be absolutely contrary to the spirit of the San Fran-
cisco Charter and to several of its articles for a country to become
judge in its own case. The coastal State also exercises power over
its maritime territory ; and if it adopts a new measure, this cannot
be set aside by violence, even under the pretext of re-establishing
the status quo. The passivity of the party that announced the
prohibition constitutes a fait accompli and is under the protection

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DISSENTING OPINION BY JUDGE AZEVEDO 109

of the old rule: in dubio melior est conditio possidentis.

The forcing of an entry into the ports of a country would not
be justified in the present day, although trade or civilization
might profit thereby, as was the case in the nineteenth century ;
still less is the forceful passage of a strait justifiable, as in the
case of Shimonoseki, in 1864.

The toleration of an act of violence, on condition that its law-
fulness were considered @ posteriori, would lead to anarchy in
international life.

On the other hand, a state of necessity, or even an irreparable
injury, could not be invoked, merely because of the difficulty of
carrying out naval exercises which, incidentally, had been arranged
to take place elsewhere.

39.—National regulations often lay down restrictions as to the
number and tonnage of ships, the repetition of visits, etc. ; this is
evidence of the menacing character of warships, and serves to
controvert the erroneous argument that if one ship is admitted,
a second must also be allowed and then a third and a fourth, ad
infinitum.

Moreover, if it is recognized that the right of admission to a port
is influenced by the number of ships employed, we are led to con-
clude that the simple passage may be influenced by the same
consideration.

Even in the case of straits, writers most favourable to warships,
like FAUCHILLE, set limits on the right of passage, e.g. concentration
of a powerful squadron (Tr. de Dr. int. publ., Paris, 1925, t. I, Vol. II,
para. 5071).

No doubt the memory of the first incident justified certain
precautions ; but in any case there was a manifest disproportion
between the forces employed and the object in view. That was
the characteristic feature of this passage, from a purely objective
standpoint, and without having knowledge of the instructions sent
by the Commander-in-Chief.

Moreover, we cannot disregard the subjective aspect of the
passage as several authors recommend, especially in cases where
documentary evidence has been produced by the party accused
of a passage not inermis et innoxia.. In this case, there was a
naval demonstration, which would not be admissible even as
reprisals, as was said at the meetings of the Institut de Droit
international at Paris in 1934.

40.—Turning now to the second operation, we note, to begin

with, that Albania was not admitted to the Medzon Board when
the latter was constituted, and that proposals for her admission,

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DISSENTING OPINION BY JUDGE AZEVEDO IIO

merely as an observer, were unsuccessfully made on several
occasions.

In spite of the predominant part naturally played by the United
Kingdom on this Board, and on the Central Mine Clearance Board,
owing to her greater experience and large navy, the failure of these
proposals cannot be laid entirely at her door, though the reasons
given, and repeated during the proceedings, cannot be regarded as
satisfactory and are sometimes contradictory.

The assignment of Sector 18 A to Greece may be regarded as an
unfriendly act on the part of the Board, seeing that this Sector
(like Sector 17, which had not been allotted to any country) had
already been swept, and Greece had not at the moment the means
of carrying out the task, and even asked for assistance from the
United Kingdom.

It has already been observed that at a critical moment the
British had opened a channel which they thought to be in the same
position as that maintained by the Germans during the war. In
order to avoid undertaking larger sweeping operations, it was
preferred to follow what was considered the easiest course, rather
than the normal route, equidistant from both coasts; though it
must not be assumed that the enemy chose the easiest solution ;
on the contrary, he preferred a route which would be the most
difficult for his adversaries to observe.

But when, a year and a half later, a dispute had arisen between
Great Britain and Albania, it would have been the duty of the
former, if she was still interested in the passage after the end of
hostilities, to restore the Channel to its normal pre-war condition.
Though the enemy had disturbed the former equilibrium, there
was no reason for persisting in a prejudicial course, after peace
had been re-established. The exact situation of the mines was
already known, and a sweep would only have required a few
hours’ work, as in the case of Operation Retail.

After the explosion, the United Kingdom Government did not
delay a decision to sweep, and notified Albania.

Meanwhile, however, it endeavoured to obtain the support or
consent of the Mine Clearance Boards, by proposing that it should
itself undertake the operation, as a natural sequel to the sweep
in 1944.

But, on October 28th, the Medzon Board did not approve,
although it thought the sweep desirable, owing to the political
character which such an operation would assume in case of a
refusal by Albania. The Central Mine Clearance Board was also
reticent: on October 31st, it recommended the sweep, subject,
however, to suitable conditions, including the agreement of the
coastal State.
DISSENTING OPINION BY JUDGE AZEVEDO III

41.—It had been said that the purpose of Operation Retail was
to protect shipping and provide access to local ports, including
Saranda, or even to relieve from responsibility the State that had
carried out the first sweep.

But the requirements of navigation were not satisfied, and
access to Saranda is not assured ; for the sweep was not finished.

But the main object of the United Kingdom is clearly defined
in the Reply : collection of evidence, to ascertain the cause of the
explosions and to reveal the guilty parties.

On the other hand, it was feared that any measure asked for
from the United Nations and decided on by that body would be
ineffective and slow.

But none of these reasons could justify such a unilateral action,
the gravity of which would have been more evident if the results
had been negative. Action for self-protection, decided on in cold
blood, in contrast with the inactivity at the time of the explo-
sions, would also be out of place. The publicity given to the
case would have been sufficient to discourage any audacious
attempt to get rid of the material evidence of the outrage.

42.—Instead of taking the law into its own hands in a case that
was neither urgent nor, unfortunately, susceptible of adequate
reparation, it would have been easier and certainly more appro-
priate for the United Kingdom to resort to a procedure of concilia-
tion, or even to have had recourse to the United Nations, especially
in view of the fact that Albania, though not a member, had already
appealed to that body. One could not assume in advance that
such a step would be met by a flat refusal by a country which
subsequently had to accept an invitation with much graver conse-
quences, e.g. that of entrusting the settlement of the whole dispute
to the Security Council, although it later raised an objection to
a reference to the Court. The minesweeping should have been
done under the auspices of the United Nations, impartially and
swiftly, in order to forestall any change in the state of the Channel.

If international justice does not yet possess satisfactory machin-
ery, the responsibility rests on the Powers, the majority of whom
do not consider the moment arrived to invest the Court with
compulsory jurisdiction.

The Court cannot be blamed for the limited means at its disposal,
nor for provisions such as that which allows a State to refuse to
produce a document, as has happened in the present case.

In spite of its imperfections, we must not give up hope of seeing
all disputes of a legal character finding their way to the Inter-
national Court. In that connexion, we cannot fail to notice the
anxiety which Great Britain has displayed on several occasions

III
DISSENTING OPINION BY JUDGE AZEVEDO IT2

to bring before the Court cases which, not long ago, would have
perhaps been settled in another manner.

Be that as it may, the collection of evidence can never justify
an act of intervention, such as has at last been frankly and finally
admitted ; such an act is repugnant to the letter and the spirit of
the San Francisco Charter. The world of to-day will no longer
tolerate a practice which has never been sincerely regarded as
lawful, and one which allows the noblest aims of humanity to be
used, all too easily, as a cloak for the worst abuses.

A further use of force must be avoided, especially one carried
out in spite of discreet hints conveyed by the international bodies
immediately concerned—a use of force without great regard for
the other party, which was not even invited to send observers or
to enter into negotiations, after an initial protest by it, and a sug- ~
gestion of a mixed commission.

The argument based on the absence of any claim in 1944 is
insufficient, having regard to the conditions already mentioned,
which prevailed in war time. Moreover, up to the end of 1945
at least, there was no stable government, recognized by other
Powers, in Albania.

Albania might therefore claim to participate in the marking out
of the Channel, which was to become the definitive route ; for she
had regained her independence, which could not be presumed to
be subject to conditions incompatible with acquired sovereignty.

On the other hand, Albania never showed a sincere intention of
approaching Great Britain with a view to settlement, as was
required by the fundamental duty of every State to co-operate in
the interests of justice and international harmony, by means of
direct negotiations. On the contrary, the more or less evasive
tone of Albania’s replies, though supported by legal arguments,
makes it possible to attenuate the United Kingdom’s responsibility
and to lay less stress on her attitude of November 13th, than on
that of October 22nd.

43.—In addition to the illegality of the operation, the means
used were excessive ; so that at first even the Admiralty anticipated
accusations of duplicity and of offence against Albania’s sovereignty.

Nor can the method used to carry out the operation be forgotten,
so far as the destruction of the mines was concerned ; for most of
them were left to drift.

It is true that the Hague Convention lays down, as an essential
condition of the use of such weapons, the adoption of an appliance
rendering them harmless as soon as they have broken loose from
their moorings. In any case, this legal guarantee does not entirely
satisfy us, and everyone believes that there still remains a certain
coefficient of danger. It is of small importance that experts in

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DISSENTING OPINION BY JUDGE AZEVEDO 113

general reduce the danger. We are entitled to mistrust even the
most accurate scientific instruments, and this case has furnished
many occasions of observing errors in apparatus and errors of the
men in charge of such apparatus, or who rely on indications given
by it ; cases of mines that have remained dangerous have also been
mentioned, and others in which the release springs have ceased
to operate, because of rust.

The mere desire of the United Kingdom to explain the measures
taken to destroy the mines would show the desirability of such
action, which however has been abandoned for other reasons.

These mines might be swept along by the current and found
elsewhere, thus justifying complaints against Albania, as happened
when an American destroyer, on November 14th, 1946, located
a drifting mine off Durazzo, and reported it by signal, although it
could not be established that the mine had been released by the
sweep carried out some distance away the day before.

44.—We are thus led to conclude that the United Kingdom
was responsible for the operations of October 22nd and Novem-
ber 13th, 1946, which involved violations of Albania’s sovereignty.

No doubt, Albania does not claim reparation for material
damage ; what she has in view is merely the application of a moral
sanction.

In this domain, even more caution is required than in municipal
law. Although premeditation has been found in the decision to
carry out, and in the execution of the two measures held to be
illegal, it would be difficult to draw a definite conclusion of evil
intent, especially in regard to the second operation : there had been
the previous incidents, and, more particularly, the recent memory
of what was almost a massacre. Further, some hesitation is
observed as to the method that the United Kingdom would take in
order to reach a settlement which she considered as urgent ; whereas
Albania took refuge in an unyielding attitude which only served
to increase Great Britain’s suspicions, founded as they were on the
gravest presumptions.

On the other hand, we cannot lose sight of the unusual manner in
which the above measures were carried out: even persons who
claim to have had no intention to injure, who invoke the gui juri
suo utitur neminem ledit, or even say they are not acting by caprice,
are sometimes bound by the consequences of a wrongful act, to
which the measure or standard of conduct required by a bonus
pater familias (an old conception, still in favour) cannot be applied.

Albania did not specify any particular sanction. In the course
of the hearing, she confined herself to an allusion to the French

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DISSENTING OPINION BY JUDGE AZEVEDO 114

practice of sometimes awarding a token payment of one franc.

But under the Special Agreement a pecuniary sanction has not
been asked for and cannot be granted, even symbolically.

On the other hand, the Court should break away from the familiar
mediaeval procedure, which is not employed nowadays even in
schools, such as apologies, flag saluting, etc. All this is reminiscent
of ultimata, which are becoming more and more obsolete.

45.—There remains only one moral sanction that can be applied
without disregarding the absence of a claim for the assessment of
damages.

The matter cannot be left to the future ; for the sanction must
re tpsa be found in the Judgment. This will be purely declaratory,
and will state that the United Kingdom’s conduct was contrary
to international law and in every way abnormal.

Within these limits, I give satisfaction to Albania and hold that
the counter-claim put forward by her in the Special Agreement of
March 25th, 1948, is well founded.

(Signed) PHILADELPHO AZEVEDO,

II4