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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005) character involve international responsibility. 7 Therefore, responsibility arises on part of both the parties subject to the acts or omission contrary to the rights inferred. Court found an obligation on part of Albania that it should have warned the British ships beforehand. Since no such warning was given, an omission under international law has constituted that made Albania responsible. The following issues relating to international responsibility should be discussed in this regard. Objective Responsibility In other words it is meant as Risk Theory. Responsibility imputes upon the state for any kind of illegal act or omission committed whether in good faith or in bad faith. There is no scope of fault in this regard. Violation of any nature entails responsibility. States are strictly responsible for such a violation. However, state can not act by itself. It can only act by and through their agents and representatives. 8 It does not matter from whatever position, superior or subordinate, a state organ is. 9 Therefore, a causal link between state and its agent or agents has generally been established in this regard. Verzijl, President of the Franco- Mexican Claim Commission, stated: the doctrine of objective responsibility of the State, that is to say, a responsibility for those acts committed by its officials or its organs, and which they are bound to perform, despite the absence of faute on their part ... The State also bears an international responsibility for all acts committed by its officials or organs which are dialectal according to international law, regardless of whether the official organ has acted within the limits of his competency or has exceeded those limits ... However, in order to justify the admission of this objective responsibility of the State for acts committed by its officials or organs outside their competence, it is necessary that they should have acted, at least apparently, as authorised officials or organs, or that, in acting, they should have used powers or measures appropriate to their official character ... 10 As Brownlie states, a considerable number of states support this point of view either explicitly or implicitly 11 , and also majority of the cases tend towards strict responsibility. In Youmans Case 12 , it was held that Mexican Government was responsible for the opening of fire by Mexican troops upon American citizens. In Caire Claim, 13 although it was argued by the Government of Mexico that the act committed by the solider was exceeding his power, Commission held Mexico responsible for shooting the French citizen dead. However, in respect of Corfu Channel Case, it was not clear from the judgement of ICJ whether Albania is strictly responsible for omission to give prior warning. This was indeed a matter of great complex as to whether Albania was directly involved in mine laying operation since there is no direct proof in this regard. However, the foundation of responsibility was mainly based on the circumstantial evidences. The British government although never abandoned the fact that Albania itself laid the minefield, but a very little attempt was made as such. Therefore, Court moved to find second alternative ground to base Albanian responsibility. The Court viewed; by taking into account various implied reasons, that whoever is the author of the minefield, did not do it without the knowledge of Albanian government. Court argued that on 15th of May 1946, while passing through the Channel, Albanian authority gun fired on British ships for which the British government protested and stated that a fire will be returned if it happens again in future. Since then, Court found, a jealous watch on Albanian part on its territorial water. Therefore, Court viewed that if even Albania did not by itself lay the minefield, it had knowledge on who 7 Judge Huber on Spanish Zone of Morocco Claims, cited 8 German Settlers in Poland Case (1923), PCIJ, Ser. B, No. 6 at p. 22, quoted in Higgins, R., Problem and Process International Law and How We Use it (1994) at p.149. 9 Article 6 of the ILC Draft 10 Brownlie, I., Principles of Public International Law (1990) at p. 438, cited. 11 Id. at p. 438 12 1926, 4 RIAA 110, cited in Higgins, R., Problem and Process (1994) at p.149 13 1929, RIAA v. 516 at 529-31, cited in Brownlie, Principles of Public International Law (1990) at p. 437 KAMRUL HOSSAIN - LEGAL ISSUES ARISING OUT OF CORFU CHANNEL CASE OF 1949 49
FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005) laid the minefield. In its judgement, Court said that the Bay of Saranda and the Channel used by shipping through the Strait are, from their geographical configuration, easily watched; the entrance of the bay is dominated by heights offering excellent observation points, both over the bay and over the Strait; whilst the Channel throughout is close to the Albanian coast. 14 Furthermore, to verify whether observation is possible by the Albanian look-out post, the Court reproduced the situation by sending a motor ship under the most favourable conditions for avoiding discovery. The ship was clearly seen and heard from the St. George’s Monastery. Test of ‘Culpa’ Doctrine In Corfu Channel Case, the Court did not even expressly state that Albania’s responsibility follows the doctrine of ‘Culpa’. However, it is deemed that the doctrine of ‘Culpa’ was found in the Case even though the ‘unclear pronouncements by the International Court of Justice’ 15 . The foundation of Albania’s responsibility was that it had knowledge that minefield exists in the path of shipping, and thus it was in a duty to notify the fact. However, a failure to observe the duty constituted a breach for what Albania is internationally responsible. In fact, this was the basis for some writers 16 to find ‘Culpa’ in this Case. Also it was mentioned by Lauterpacht, that if Culpa was not necessary, it would not have been necessary to decide whether Albania had preknowledge. 17 Need for Culpa was even clearly mentioned by two of the dissenting judges. 18 Higgins was in support of the opinion that Court was neutral on Culpa. It only simply says that a failure to warn about what it knew violated an international obligation. 19 However, it may be argued that mere absence of the express statement by the Court does not mean that doctrine of Culpa might not be found. Albanian from the very beginning denied its involvement with mine laying activities, and also denied its prior knowledge of the minefield. The Court did not even find any direct evidence on the fact that Albania itself laid the minefield or the minefield was laid in connivance or knowledge of the Albanian government. However, taking all the evidences together and presumptions, the Court was in opinion that Albania Should have had knowledge and therefore, since prior warning about the danger was not given, it should be incurred responsibility. Doctrine of Culpa may apply where there is a lesser degree of responsibility. Albania might have been in a strong position in this regard if it would have provided due diligence following the explosions on 22nd October 1946. When a breach is committed by a private individual, revolutionary group or the breach was the result of insurrection, state might not be incurred responsibility provided that it showed due diligence. In 1924, in Union Bridge Co. Case, the Court states that to show due diligence will not impute responsibility. In Home Missionary Society Claim, in 1920, it was stated that no government is responsible for the acts of rebels where the government itself was guilty of no breach in good faith or not negligence in suppressing the revolt. In the US Hostage Case the International Court of Justice noted that those attacking the US Embassy had no status as recognised agents of the State, and their conduct was not to be imputed to the state on that basis. Article 14 of the ILC Draft affirms that the conduct of an insurrectional movement is not to be considered the act of the state. Article 15 of the ILC Draft states, that the act of an insurrectional movement which becomes the new government of a state, shall be considered as an act of that state. In 14 ICJ Report, 1949 at p.20 15 Higgins, Problem and Process (1994) at p. 160 16 Oppenheim, Inernational Law, Ed. H. Lauterpacht (8th ed., 1955), in 343, quoted in Higgins, id. at p. 160 17 Id. at p. 160 18 ICJ Report, 1949 at pp. 72, 128 19 Higgins, Problem and Process (1994) at p.160 KAMRUL HOSSAIN - LEGAL ISSUES ARISING OUT OF CORFU CHANNEL CASE OF 1949 50
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