LEGAL DISCOVERY IN THE INTERNATIONAL COURT (Corfu Channel case)

LEGAL DISCOVERY IN THE INTERNATIONAL COURT

(Corfu Channel case)

By: Irma Hanafi

 

            From birth to death, humans live among other humans, that is, they live in association with other humans. Humans are members of society. This was stated in ancient times by the Greek philosopher Aristotle. zoon polition, each member of society has an interest. There are members who have the same interest, but there are also members who have conflicting interests. Conflicts between human interests can cause chaos in society, namely when in society there is no power, namely an order that can balance (in evenwicht houden). Efforts are made to fulfill these conflicting interests, efforts to maintain peace, especially economic peace in society, then by humans themselves (interested groups) made guidelines for life (levensvoorschriften). These guidelines for life are given the name of rules (norms) found in law, customs, traditions, religion and morality. These guidelines for life become a social phenomenon, namely a phenomenon that exists in society. Law is a social phenomenon, and there is no society that does not know the law. Law is a collection of guidelines for life that regulates order in a society, and should be obeyed by the members of the society concerned, because violations of these guidelines for life can result in action from the government of that society.[1]

            The definition of legal rules includes legal principles, legal rules in the narrow sense or values ​​(norms) and concrete legal regulations. Legal codes in a broad sense relate to each other and constitute one system, the legal system. Apart from legal rules and systems, the target of studying law is legal discovery, because the law is incomplete so it needs to be sought and discovered. Therefore, you must also learn how to search for or discover the law.[2]

The law must be implemented, meaning that what has become a guideline and is considered appropriate by society in general must not be violated, that if there is a violation then the law that has been violated must be restored, enforced or maintained. The law is not just a guideline on how we should act so that the interests of each person are protected, but because of its function as the protection of human interests, it must be implemented and must not be violated, and if violated must be restored, enforced or maintained through the courts.[3]

Justice is the noblest human interest on this earth. After all, justice is what people seek endlessly, people fight for persistently, people wait for it with full trust from the authorities and people will oppose as hard as they can if justice is not given or justice does not exist. From the beginning of orderly society, institutions for maintaining and regulating justice have been a matter of primary concern. In legal science, talking about the administration of justice means regulating relationships and publishing human behavior in and through the courts of a politically organized society.[4]

Where a politically organized society grows stronger and surpasses a tribally organized society as well as a religious organization of society, as the most sublime tool of social control, then we arrive at legal order, with a legal meaning according to the understanding of legal experts, namely a system for regulating relationships and regulating human behavior by systematically and regularly applying the power of a politically organized society.. Systematic and regular application requires a set of authoritative norms or patterns of decision-making that can be useful for a person as a guide to behavior, and also useful for judges as a guide for their decisions. Therefore, in advanced societies we get the second meaning of law according to the understanding of legal experts. According to this understanding, law is a set of authoritative guides or basic provisions, which are developed and established by an authorized technique against the background of ideals about social order and accepted law.[5]

The purpose of law is to regulate social interaction peacefully. Law demands peace. Peace among humans is maintained by law by protecting certain human interests, such as honor, liberty, life, property, and so on, from those who harm them.[6]

In fact, law not only changes according to the dimensions of space and opportunity, as in Belgian law, United States law, Indonesian law, and so on, but also according to the trajectory of time. This applies even to formal sources of law, namely the forms in which legal norms are embodied and their content. Advanced legal systems generally recognize these sources of law as:

a.       Legislation (wetgeving), namely legal norms issued by the ruler (overheid).

b.      Jurisprudence is the entire collection of decisions of judicial bodies.

c.       Legal teachings (doctrine) in the form of writings by experts and specialists on law, and;

d.      Legal customs (recht gewoonte) are social customs which are seen by members of society as binding and which have received recognition and confirmation from the authorities.[7]

Laws can be distinguished into law in the material sense and law in the formal sense. Laws in the material sense are decisions of the authorities which, in terms of their content, have general binding force. Laws in the formal sense are decisions of the authorities which are given the name law due to the form in which they become law.[8]

Because the legal order empowers the law-applying organ to apply the general norms of law per analogy, it guarantees this body a wide scope for free discretion within which the latter can create new law for the case at hand.[9]

Law enforcement is a process of realizing legal desires into reality. These desires are the thoughts of the legislature, formulated in these regulations. The law enforcement process extends to the creation of the law. The formulation of the thoughts of lawmakers, as outlined in legal regulations, will also determine how law enforcement is carried out. The human factor will receive sufficient attention, because discussing the issue of law enforcement without touching on the human aspect of carrying out the enforcement is a sterile discussion. If we discuss the issue of law enforcement only by adhering to the requirements as stated in the legal provisions, we will only obtain an empty picture that will only become fuller when linked to its concrete implementation by humans.[10]

As a legal authority, decisions are a series of written regulations, such as the Constitution, laws, presidential decrees, government regulations, ministerial decrees, and regional regulations. These regulations are made by the authorities, in this case the legislative body. For example, laws are made by the President and the House of Representatives (DPR), and level I regional regulations are made by the DPRD and the Governor.

The judge's decision is part of the law as a decision of the ruler, because it has legal force as a manifestation or embodiment in society.  The rules of the ruler's decision are the enforcers of huThey are authorized by the government to regulate and guide the relationships between members of society so that they comply with the regulations established by the government. These regulations serve as guidelines for how people should live in society. Police and prosecutors can compel members of society to obey these laws, and judges have the power to adjudicate them. Thus, laws are regulations created by those in authority and are coercive in nature.[11]

One of the obligations mandated by law to judges is the obligation to discover the law that exists within society. This obligation is not merely to discover it, but also to implement it in their decisions. Regarding the obligation of judges to discover the law that exists within society, Law No. 4 of 2004 concerning Judicial Power, Article 28 stipulates that: judges are required to explore, follow, and understand the legal values ​​and sense of justice that exist within society. From the provisions contained in Article 28, it is clear that judges are obliged to know and deepen the legal awareness of society so that they can also understand the law that exists within it. The element of judges' beliefs is also required by law to be used as a forum that connects with the elements of legal awareness that exist within society, to be implemented in a judge's decision. Thus, it is inappropriate for judges to remain seated in ivory towers that have thick barriers with their society. Furthermore, the expression of judges as merely mouthpieces of the law should not be applied absolutely. Because the law was never made completely. However, the law also stipulates that the position of judges is independent, meaning free from any influence. Article 24 of the 1945 Constitution (3rd amendment) stipulates that "Judicial power is an independent power to administer justice...". From this provision, it is clear that the profession of judge is an independent profession. Independent in this case is free from any influence, especially free from the influence of the government as the executive body and free from the influence of the House of Representatives as the legislative body. The duties of judges are the duties of the judiciary. It is up to the judges themselves to explore the laws that exist in society and apply them in their decisions without society or anyone influencing the decisions made by the judges.[12]

If the definition of law is interpreted in a limited sense as a decision of the ruler and in a more limited sense as a legal decision (court), the main problem is the duties and obligations of judges in determining what can become law, so that through their decisions judges can be considered as one of the factors forming the law. An important task of judges is to adapt the law to the real things in society. If the law cannot be implemented according to its meaning, the judge must interpret it. In other words, if the law is unclear, the judge is obliged to interpret it so that he can make a decision that is fair and in accordance with the intent of the law, namely to achieve legal certainty. Therefore, one can say that interpreting the law is a legal obligation of the judge.

DryAlthough interpretation is a legal obligation of judges, there are several restrictions regarding the freedom of judges to interpret the law. Logeman said judges must defer to the will of lawmakers. In the event that the will cannot simply be read from the words of the statutory regulations, the judge must look for it in the history of the words, in the legal system or in the meaning of such words used in everyday interactions. The judge is obliged to seek the will of the legislator, because he cannot make interpretations that are not in accordance with that will. Every interpretation is an interpretation limited by the wishes of the legislator. Therefore, judges are not permitted to interpret the law arbitrarily. The method of interpretation is determined by: a) the material of the relevant legal regulations, b) the place where the case is filed, and c) according to the era. [13]

In the international legal environment, judges' decisions are reflected in the decisions of the International Court of Justice..

Disputing parties can seek a resolution by submitting their disputes to the International Court of Justice, established in 1946 as the principal organ of the United Nations. This court replaced the Permanent Court of International Justice established by the League of Nations in 1926. The International Court of Justice consists of 15 independent judges whose duty is to resolve claims on the basis of international law and issue final and non-appealable decisions. appeal and binding on the parties. The most effective means for a definitive settlement of certain types of international disputes is a binding decision of the International Court of Justice. Both the Permanent Court of International Justice and the International Court of Justice have handled several dispute cases submitted by disputing parties for judicial settlement, all of which concerned issues of interpretation or application of international agreements or concerns specific issues such as:

a.       Issues relating to sovereignty over certain territories and disputes over borders; (status of Eastern Greenland between Denmark and Norway)

b.      Issues concerning maritime delimitation and other legal issues related to maritime disputes (fisheries issues between the UK and Norway)

c.       Problems that arise due to the use of violence (Corfu Channel case between England and Albania)

d.      Various other cases involving the implementation of contracts and violations of the principles of customary international law (the SS Lotus case between France and Türkiye).[14]

The legal facts of the Corfu Channel case include, on October 22, 1946, two British cruisers and two destroyers, coming from the south, entered the North Corfu Channel. The channel they were navigating, which was in Albanian waters, was declared safe: the channel had been swept in 1944 and again in 1945. One of the destroyers, Saumarez, struck a mine and was badly damaged. Another destroyer, Volage, was sent to assist Saumarez and, while towing her, struck another mine and was further damaged. Forty-five British officers and sailors lost their lives and 42 were injured.

An incident also occurred in these waters in May 1946: an Albanian battery fired at two British cruisers. The British government protested, stating that innocent passage through the straits was a right recognized under international law. The Albanian government declared that foreign warships and merchant ships were prohibited from entering Albanian territorial waters without prior permission, and on August 2, 1946, the British government declared that if in the future shots were fired at British warships passing through the straits, British ships would retaliate.

 

After the explosion on 22 October the British Government sent a note to Albania regarding its intention to carry out a mine sweep in the Corfu Channel. Albania's response was that permission could not be granted unless the minesweeping operation was outside Albanian territorial waters and that minesweeping carried out in those waters was a violation of Albanian sovereignty, the sweep carried out by the British Navy took place on 12-13 November 1946, in Albanian territorial waters and within the previously swept distance, 22 mines were defused, the mines were of the German GY type.

Britain demanded compensation for the damage to its ships and the casualties. Albania rejected the demands. Britain submitted the case to the International Court of Justice on May 22, 1947.

The debate between the parties

The Albanian government said that the mines discovered on November 13 were probably laid after October 22, making the damage to the warships unlikely to have been caused by anything in the area. However, Maltese experts believe that the damage to the ships was caused by mines identical to those found in the minefield. 

The UK claimed that the minefield had been laid by Albania or with its knowledge and consent, or alternatively, that the Albanian government had misled the Albanian government about the minefield being within its territorial waters. This was in violation of the Eighth Hague Convention of 1907 and had failed to warn other countries about the presence of the minefield. Furthermore, the Albanian government had been aware of the arrival of the British Navy ships and had failed to warn them of the presence of the minefield, and that the presence of the minefield without notification was a violation of the right of innocent passage by foreign ships through international waters such as the Strait of Corfu. The UK demanded £825.000 in damages to repair the damage to the two ships and £50.000 for pensions and other expenses for the deceased and injured crew members.

            Albania counters that no evidence has been presented that the mines which caused the damage to the British ships were planted by Albania and that no evidence has been presented that the mines were laid by a third party on behalf of Albania and that no evidence has been presented that the mines were laid with the assistance, consent or knowledge of Albania. That the coastal state has the right in exceptional cases to regulate the passage of foreign warships through its territorial waters and this regulation applies to the Strait of Corfu. That such exceptional circumstances existed at the time of the incident, so that foreign warships had to obtain prior permission to pass through Albanian territorial waters. That the passage of the ships on 22 October 1946 without permission was a violation of international law.

That the passage of ships on 22 October 1946 without permission was a violation of international law that the passage of British ships was not an innocent passage, that the mine clearance on 12-13 November 1946, without permission in Albanian waters was a violation of international law. For these reasons, Albania is of the opinion that it does not need to pay compensation to Britain, instead Britain should provide compensation to the Albanian government for violations of international law.

International Court of Justice Decision

Both parties then agreed through the first part of the Special Agreement to submit questions to the International Court of Justice:

1.      Is Albania responsible for the explosion that occurred on 22 October 1946 in Albanian waters and is Albania obliged to pay compensation for the damage to British ships and the victims?

The International Court of Justice ruled that the Albanian government had made no attempt to prevent the disaster. The negligence that led to this disaster constituted responsibility under international law for the explosions that occurred on October 22, 1946, in Albanian waters, as well as for the damage and casualties, and Albania was obligated to pay compensation to the United Kingdom.

2.      Did Britain violate Albania's sovereignty under international law by the actions of its naval vessels in Albanian waters on 22 October and on 12-13 November 1946, and is there an obligation for compensation in this regard.

 

Regarding this second question the International Court of Justice ruled that the British Empire did not violate the sovereignty of the People's Republic of Albania on the grounds of the activities of the British Navy in Albanian waters on 22 October 1946.

The decision of the International Court of Justice was taken by a vote of ten to six votes, while for the second question above, the decision of the International Court of Justice was taken by a vote of fourteen to two votes and unanimously. The International Court of Justice ruled that the actions of the British Navy in Albanian waters on 12-13 November 1946 were a violation of the Sovereignty of the People's Republic of Albania, and that such a statement by the International Court of Justice meant a just compensation.

Of the several dispute cases submitted by the disputing parties to the International Court of Justice for legal settlement (judicial settlement), all of which concern the interpretation or application of international agreements, one of them is the Corfu Channel Case.

The Corfu Strait dispute was a dispute between Albania and the United Kingdom that was tried by the International Court of Justice in 1949. On May 15, 1946, British warships passing through the Corfu Strait in Albanian territorial waters were fired upon by Albanian coastal guns. Then on October 22, 1946, two British ships passing through the Corfu Strait struck sea mines, causing damage and casualties among the crew. In November, 1946, British Royal Navy units conducted minesweeping (operation retail) in the part of the Corfu Strait located in Albanian waters without the permission of the Albanian government.

The Discovery of International Law

The source of legal discovery is none other than the source or place where judges can find the law.[15] For positive international law, only Article 38 of the Charter of the International Court of Justice is important. Article 38 paragraph (1) states that in adjudicating cases submitted to it, the International Court of Justice will use:

(1)   An international agreement, whether general or specific, containing legal provisions expressly recognized by the disputing countries.

(2)   International custom, as evidence of a general practice accepted as law

(3)   General legal principles recognized by civilized nations

(4)   Court decisions and the teachings of the most prominent scholars from various countries as additional sources for establishing legal rules.[16]

International agreements in a narrower scope are: A written agreement between two or more subjects of international law (states, holy places, liberation groups, international organizations) regarding a particular object that is formulated in writing and is subject to or regulated by international law.[17]

No peace agreement can be considered valid if it contains hidden intentions to prepare for future war. Because in that case the agreement would be nothing more than a mere ceasefire, a suspension of hostilities rather than true peace.[18]

Customary international law is international custom, which is a general practice accepted as law. General principles of law are the legal principles that underlie modern legal systems. What is meant by a modern legal system is a positive legal system based on the principles and institutions of Western law, which are largely based on the principles and institutions of Roman law. Court decisions and scholarly opinions are subsidiary or additional sources, meaning that court decisions and scholarly opinions can be presented to prove the existence of international legal rules regarding a problem based on primary sources, namely international treaties, customs and general principles of law.[19]

In addition to its duty to apply the law, the court or judge's duty is to render a decision in a case between two parties in court, each of whom may interpret the same statutory provisions differently and differently. The court has an important position because it performs a function that essentially complements written legal provisions through the formation of law (rechtvorming) and the discovery of law (rechtsvinding).

In other words, judges/courts have the function of creating new law. The function of creating law by courts/judges must fill gaps in the law and prevent cases from being handled due to unclear or non-existent law. Judges carry out this very important function through... interpretation, construction and refinement. [20]

The power of interpretation may also be granted to judges based on a treaty. Article 36 of the Statute of the International Court of Justice states: The Court shall have the authority to examine disputes concerning the interpretation of a treaty.

According to Dharma Pratap, interpretation is an explanation of each term in an agreement if there is a double or unclear meaning and the parties give different meanings to the same term or cannot give any meaning to the term.

The main purpose of an interpretation is to explain the true intentions of the parties or it is an obligation to provide an explanation of the parties' intentions as expressed in the words used by the parties in light of the surrounding circumstances. [21]

According to Starke, general principles of interpretation can be grouped into,

a.       Grammatical Interpretation and the intention of the parties, in this case first the words or arrangement of words must be seen which must be interpreted according to their normal and reasonable meaning, then the intention of the parties at the time the instrument was made must be seen.

b.      Object and Context of Treaty, If the words or wording are doubtful, the construction must be linked to the general purpose of the treaty.

c.       Reasonableness and Consistency, what is meant by appropriateness and suitability is that the agreement must be interpreted by prioritizing the reasonable meaning of the words and sentences by paying attention to the harmony of the words and sentences by paying attention to harmony with other parts of the agreement.

d.      The Principle of Effectiveness, this principle of effectiveness is especially emphasized by the Court that it is a condition that an agreement must be interpreted as a whole which will make the agreement most effective and beneficial.

e.       Resource to Extrinsic Materials, usually the court's interpretation is limited to the contents of the agreement or to what is stated in the agreement.[22]

In international law, there are three schools of interpretation, namely:

a). Intection-school, this school argues that the will of the agreement makers is independent of the text of the agreement. This school makes extensive use of preliminary work (travaux preparatorie) and other evidence that illustrates the intentions of the parties.

b). The Textual School, this school of thought, believes that the text of an agreement should be given the meaning commonly given and understood from the words. Therefore, according to this school, the most important elements are the text of the agreement, then the will of the parties making the agreement, and the object and purpose of the agreement.

c). Teleological school: This school of thought emphasizes interpretation by examining the object and general purpose of the agreement, which stands alone, regardless of the original intentions of the parties making the agreement. In this case, the text of an agreement can be interpreted broadly and expanded upon as long as it is consistent with or in line with the general purpose, and may differ from the wishes of all parties making the agreement.[23]

Construction is used when a judge uses his logical reasoning to further develop a legal text, where the judge no longer adheres to the text's wording, but on the condition that the judge does not ignore the law as a system.[24] Steps in legal construction: The judge reviews the material system underlying the legal institution he is facing as the subject of the case, the judge tries to form a new legal understanding (rechtsbegrip) by comparing several provisions in the relevant legal institution which are considered to have certain similarities, after the legal understanding is formed, that legal understanding is used as the basis for constructing a conclusion in resolving the case.

Legal refinement involves not applying or implementing the law in a manner different from the existing written legal provisions. Legal refinement occurs when applying the written law as it is would result in such gross injustice that the written legal provisions should not be applied or implemented differently if justice is to be achieved.[25]

Roscoe Pound pointed out that there were at least seven opportunities for judges in the Anglo-Saxon legal system to exercise their discretion, so that they could refine the law, even create new law, namely:

1.      Through the discretion of the court in terms of applying equitable remedies.

2.      Through the application of legal standards to general attitudes that cause harm to the injured party.

3.      Through the jury's authority to provide a general verdict

4.      Through the principle of freedom in the application of law in order to find the law.

5.      Through efforts to adjust appropriate sentences for suspected criminals.

6.      Through informal methods of court administration in minor cases.

7.      Through administrative courts.[26]

In examining cases, applying, finding, and even making laws, if necessary, judges must be independent. Judges must not be influenced by other parties, including the executive branch. This is what the theory of judicial independence teaches. In principle, this theory of judicial independence reinforces the following:

1.      Judges are free to decide cases and can use any standards they deem appropriate, as long as they do not abuse their power as judges (abuse of power).

2.      Especially for practical purposes, it is not necessary for the judge to have an in-depth discussion to justify the decision he made.

3.      Even in countries that adhere to the Anglo-Saxon system, judges can deviate from previous judges' decisions.

4.      A court decision that has final and binding force (inkracht) cannot be reviewed by any agency, except by the court itself through a very special procedure, namely through a judicial review.

5.      Judges are free to decide cases because of their appointment, especially Supreme Court justices, whose appointment also involves parliament and the government, so that judges have a strong basis of authority to act on behalf of the public interest.[27]

 

International Court of Justice

The Court has successfully resolved numerous issues that raise important legal questions or difficulties in treaty interpretation. Some of these decisions or opinions stem from important political disputes brought before the United Nations Security Council and the decision of the International Court of Justice in the Corfu Channel, which have contributed to the development and methodology of international law.[28] According to Brownlie, the International Court of Justice is essentially a continuation of the Permanent Court of International Justice. The two share similarities, with more or less identical statutes and similar jurisdictions. The fundamental difference lies in the existence of a procedure for amendments to the Statute of the International Court of Justice.[29]

Article 92 of the United Nations Charter states that the International Court of Justice is the principal judicial organ of the United Nations. It shall operate in accordance with the Statute of the Permanent Court of Justice, which is an integral part of this Charter. [30]

Article 1 of the Statute of the International Court of Justice states that the International Court of Justice, established by the Charter of the United Nations, shall be constituted and shall operate in accordance with the provisions of the Statute. Article 2, The Court shall consist of a body of impartial judges, elected without regard to their nationality, from persons of high moral character, possessing the qualifications required in their respective countries for appointment as supreme judicial officers, or as legal advisers of recognized competence in international law.[31]

The Court is not an intergovernmental organ, and international judges are not representatives of governments acting in accordance with the instructions of their respective governments. Therefore, to maintain their independence, judges enjoy the same immunities as diplomatic officials. They may not be removed from their functions during their term of office and may not engage in other professional activities. In the selection of judges, the Statute of the Court also calls for attention to ensure that the judges selected not only have the necessary qualifications but also must represent the various cultural forms of the legal systems of the world (Article 9). In the selection of judges, a system of equitable geographical distribution is also used, and as a result, the number of European judges has been reduced to make room primarily for Asian and African judges.[32]

Article 34 paragraph (1) of the Statute categorically states that only states may be parties in cases before the Court. From this article it can be said that not only individuals, but also international organizations cannot be parties to a dispute before the Court. In principle, the Court is only open to states that are members of the statute. In addition, Article 93 paragraph (2) of the Charter also states that states that are not members of the United Nations can become parties to the Statute of the Court, with conditions to be determined for each application by the General Assembly upon the recommendation of the Security Council. In practice, the Council is rarely asked to use Article 94 paragraph (2) because usually states accept the Court's decisions except in several decisions, namely regarding the Corfu Strait incident in 1949 because Albania refused to pay compensation to England.

The Court's decision is the highest legal body in the world, and a country's rejection of its decision could damage its image in international relations, especially if the country has previously accepted the Court's mandatory authority. Therefore, by providing an exception to the aforementioned provision, other countries not parties to the Statute are also allowed to bring cases before the Court. In this case, the Security Council also determines the conditions.[33]

Article 36 paragraph (1), The competence of the Court shall extend to all cases submitted by the parties and to all matters in particular as determined by the Charter of the United Nations, or in existing treaties and conventions. Paragraph (2), The States Parties to this Statute may at any time declare that they are bound ipso facto and without special agreement, in their relations with any other State which accepts the same obligations, by the competence of the Court in all legal disputes concerning: a. The interpretation of a treaty; b. any question of international law, etc.

Article 53 of the Statute states: If one of the parties does not appear in court or does not defend his case, the other party can ask the court to make a decision in favor of his claim. The problem of the absence of one of the parties in a case before the court occurred during the time of the permanent court and also exists in the current court system, as an example can be taken the absence of Albania in the Corfu Channel case. The disputing state not being present at the court does not prevent the organ from making a decision with the conditions as stated in article 53 paragraph (2) of the Statute, that before handing down a decision to a party who is not present, the court must be sure that it not only has the authority but also that its decision is truly based on facts and law. Thus, even though the party being punished is not present, in principle he cannot reject the decision made by the court.[34]

Under this provision, states parties to the Charter of the International Court of Justice can state that they recognize the authority of the International Court of Justice as binding and not based on special agreements. The optional clause represents an important step towards a mandatory international court. The International Court of Justice must base its decisions on law, unless both parties have previously agreed to accept a decision ex aequo et bono.[35]In resolving the Corfu Channel case, both parties acknowledged the court's authority and agreed to seek a decision from the International Court of Justice. The Court's decision of March 25, 1948, regarding the Corfu Strait case reads: "It is the agreement of the disputing parties that grants authority to the Court."[36]

The International Court of Justice in deciding a case regarding interpretation first uses an explanation of the text of a treaty seen in the context of the treaty and not just the meaning of the words. Only if there are different words will the Court use another method of interpretation. The Court also uses the "principle of subsequent practice" insofar as the practice of countries in implementing the provisions of the agreement is evidence of what is actually the object and purpose of the agreement. The practices of these countries can be used as a guide to understanding the true meaning of the words of the treaty. The Court also sometimes applies the "principle of effectiveness" as best as possible, in this case an agreement is interpreted in such a way as to give legal consequences to the object and purpose of the agreement in accordance with its usual meaning.[37]

As a permanent institution, the Court continually reminds states that there are legal channels through which international disputes can be peacefully resolved. Because it is a permanent institution, its procedures and jurisdiction are recognized by the international community. The Court's future role lies not with the Court but with states. The Court's Statute provides for the protection of its jurisdiction by states, but states must be willing to submit their disputes to an impartial tribunal.[38]

Legal Findings in the Corfu Channel case

The court found that the explosion was caused by mines discovered in the minefield on November 13. It is not disputed that these mines were recently planted. Since these mines were located in a strait that had previously been cleared and declared safe, the explosion occurred. The nature of the damage suggests that the source was the same mines cleared on November 13, perhaps planted after the October 22 explosion, which is too doubtful to accept.

 The Court did not consider it necessary to seriously consider the possibility that Albania itself planted the mines; this suggestion was put forward merely pro memoria, without any supporting evidence and not connected to the indisputable fact that throughout Albania's territory, there were only a few launches and motorboats. However, the United Kingdom alleged that the mines were planted by two Yugoslav vessels at the request or with Albania's consent. The Court found that this conclusion could not be established.

The UK argues that whoever was responsible for the mine-laying could not have done so without Albania's knowledge. It is true that the fact that the mines were laid in Albanian waters does not involve prima facie responsibility nor shifts the burden of proof. In other words, the exclusive control exercised by a state within its borders makes it impossible to provide direct evidence of the facts that would establish its responsibility for violations of international law. The victim state must in this case be allowed to more openly assess the facts and circumstances.

The first relates to the behavior of the Albanian government before and after the disaster. The minelaying occurred during a period when it was fully aware of the minefields' existence. Furthermore, while the Albanian government was fully aware of the minefields, it strongly protested the British fleet's activities but did not protest the minelaying itself. If this action had been carried out without Albania's consent, it would have seriously challenged Albanian sovereignty.

Albania failed to notify the ships of the presence of the mines, as required by international law, and it failed to conduct the judicial investigations it was responsible for. Such behavior can only be explained if the Albanian government, upon learning of the mines, wanted to keep them secret.

The second fact concerns the possibility of monitoring the minelaying from the Albanian coast. Geographically, the strait is easily visible, dominated by heights that offer observation points, and faces close to the coast (the nearest mines are 500 meters offshore). A methodical and well-prepared minelaying would have taken approximately two to three hours in the waters between Cape Kiephali and St. George's Monastery. In this regard, the court-appointed oceanographer reported that it is an undisputed fact that if normal observations had been made at Cape Kiephali, Denta Point, and St. George's Monastery, and if these observations had been supplemented by surveillance equipment, under the normal conditions of the area, the minelaying operation would have been noticed by the coast guard. The existence of an observation post at Denta Point cannot be substantiated but the Court based itself on the declaration of the Albanian Government that the lock-out post was located at another point, referring to the following conclusions: that in the case of minelaying 1 from north to south the minelayers should have been visible from Cape Kiephali, if from south to north, they would have been visible from Cape Kiephali and St. George's Monastery.

From all the facts and observations mentioned above, the Court concludes that the minelaying could not have been carried out without Albania's knowledge. The obligation to provide such knowledge is not disputed. It was its duty to inform ships, and in particular to warn ships passing through the strait on 22 October, of the danger they faced. In fact, Albania did nothing to prevent the disaster, and this gross negligence gives rise to serious liability.

In the Court's judgment, a declaration and dissenting opinions from Alvarez, Winiarski, Zoricic, Badawi Pasha, Krylov and Azevedo, as well as Dr Ecer, the ad hoc judge, were attached.[39]

The definition of sovereignty has undergone various changes over time. For example, in international legal literature, a sovereign state is defined as one that has the ability and right to manage its own domestic and international interests, without relying on other states. Jean Bodin explored sovereignty from within its territorial boundaries, where internal sovereignty is the supreme authority of a state to manage its territory and its people. Grotius explored sovereignty from its external aspect, namely sovereignty in its relations with other states. External sovereignty is more commonly known as independence and equality.[40]

The principle of respecting a country's territorial sovereignty is demonstrated by the decision of the International Court of Justice in the Corfu Channel case. The Court's decision stated that the British mine-clearing operation in Albanian territorial waters in November 1946, three weeks after the sinking of British destroyers and the resulting loss of human life due to mines in the Channel, constituted a violation of Albanian sovereignty, even though Albania was considered negligent and did not respond quickly to the explosion of the mines.[41]

In this case the International Court of Justice held that as soon as the Albanian Government became aware of the existence of a minefield in its territorial waters in the Corfu Channel, it was obliged to notify ships and warn British ships approaching the area of ​​the mine danger, and therefore Albania was liable to pay compensation to the British Government for the damage to its ships and loss of life caused by the explosion of the mines. The Court said that it is a “generally recognized principle” that every state has an obligation not to allow its territory to be used for acts contrary to the rights of other states.[42]

The Court's decision in the Corfu Channel case is support for tort liability where Albania allowed mines to be placed on its territory where the explosion of the mines caused damage to the United Kingdom. In international law a state is responsible for the acts of: (a) its government, (b) any political subdivision of the state, (c) any agency, official representative or other representative of its government or any subdivision acting within the scope of their functions.[43]

The law is not merely a guideline on how we should act so that our individual interests are protected, but because of its function as the protection of human interests, it must be implemented and must not be violated, and if violated, it must be restored, enforced or maintained through the courts.

One of the statutory obligations entrusted to judges is the obligation to discover the prevailing law in society. This includes not only discovering it, but also implementing it in their decisions. The judge's function of lawmaking must fill gaps in the law and prevent cases from being dismissed due to unclear or non-existent law. Judges perform this crucial function through interpretation, construction, and refinement.

In the International Court of Justice's ruling on the Corfu Channel case, a tendency toward legal construction was observed. This is used when a judge uses logical reasoning to further develop a legal text, where the judge no longer adheres to the text itself, but provides that the judge does not ignore the law as a system. In this case, the Court did not rely solely on the provisions of international law, but analyzed the case using customary international law, which is often applicable in international relations.

In the Corfu Channel case, the facts are that the perpetrator of the crime was a private individual, not an agent or state. In this case, the state could have allowed or at least failed to provide adequate assistance as a preventative measure to prevent the incident. This case does not fall under the category of action because the Albanian government had no intention of harming the British ships, nor does it constitute strict liability due to the presence of mensrea, and Albania's international obligations to the UK are not obligations of result. Therefore, this case is also known as negligence. Albania violated international law, namely a violation of international obligations, for which Albania had the means to prevent the incident. These facilities included communications equipment, outposts, coast guard personnel, and several boats. Albania also had the opportunity to prevent the incident because the Strait of Corfu is geographically easily visible. One of these facts is that Albania should have been obliged to provide due diligence by warning passing British ships and/or conducting mine clearance. In fact, Albania did nothing to prevent the disaster, and this gross negligence gives rise to international liability.

 

 

 

 

 

 

 

 

 

 

 

 

 

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