1948

ICJ

Corfu Channel Case UK v Albania Preliminary objections

On October 22, 1946 Two British destroyers struck mines in Albanian Waters and suffered damage. On November UK undertook to sweep the Strait. On May 1947 UK presented a claim against Albania arguing that the ICJ had jurisdiction under art 36(1) ICJ as being a matter specially provided in the UN charter, on the grounds that: a. SC after dealing with the dispute 36 UN recommended to refer the dispute to ICJ b. Albanian government accepted invitation of SC under art 36 UN to participate in discussions and c. A member of UN agree to accept the decisions of the SC, 25 UN Albania responded by a letter of July 1947: It ‘would be within its rights in holding that the UK was not entitled to bring the case before the ICJ by unilateral application without first concluding special agreement with Albania’ … Albania ‘is prepared notwithstanding this irregularity in the action taken by the UK to appear before the court’ Later on Albania filed a document raising preliminary objections to the jurisdiction Just before this order were issued the UK and Albania presented a special agreement

The language used by the Albanian Government cannot be understood otherwise that as a waiver of the right subsequently to rise an objection directed against the admissibility of the application founded on the alleged procedural irregularity of that instrument [Theory of forum prorogatum] The arguments presented by the UK to establish that this was a new case of compulsory jurisdiction [SC recommendation to the parties to refer a dispute ICJ] have not convinced us. In particular having regard of the word recommendation and the general structure of the Charter which found jurisdiction of the ICJ on the consent of states,