CORFU CHANNEL CASE [ICJ DECISION OF 1949] – UNITED KINGDOM V.

ALBANIA

Facts

On 15 May 1946, the British warships went through the Corfu Strait. They were shot at because
they disregarded the Albanian government's request for permission to do so. Subsequently, on
October 22, 1946, a group of British warships (two cruisers and two destroyers) left the port of
Corfu and sailed across a section of the North Corfu Strait that had previously been mined. A
mine struck both destroyers, severely damaging them. Several deaths were also brought on by
this catastrophe. The two ships were mined in a waterway that had been swept and checked-
swept in Albanian territorial seas.

After the explosions on 22nd October, the UK Government issued a note to the Albanian
Government. The memo announced the UK government's impending sweep of the Corfu
Channel. On October 31, London received a response from the Albanian government. It claimed
that unless the operation in question took place outside of Albania's territorial waters, the
Albanian Government would not consent to it.

On 1 November 1946, the International Central Mine Clearing Board, at the UK government's
request, agreed that there should be another sweep of the English Channel. It should, however, be
contingent on Albania's approval.

The United Kingdom Government told the Albanian Government on November 10 that the
sweep would occur on November 12. According to a statement made by the Albanian
government on November 11th, the sweeping of the navigational channel by the British fleet
poses no issue for Albania. But it thought it was important to define what portion of the sea
should be recognised to be this channel before beginning the sweeping. It suggested the creation
of a Mixed Commission to accomplish this.

The Albanian government made it plain that any sweeping carried out inside Albanian territorial
waters without its permission will be seen as a wilful infringement of Albanian sovereignty. The
British government then carried out "Operation Retail" on November 12 and 13.
Issues

1. Whether Albania was liable under International Laws for the mine explosion that took place
on October 22, 1946 in Albanian waters along with the resulting equipment damage and
fatalities?
2. Did UK infringe on Albania’s sovereignty by conducting sweeping operations without the
Albanian Government’s permission?
3. Was the UK entitled to damages for the loss incurred?

Finding and Reasoning of the Court

The Court observed that while Albania could not possibly have deployed the mines themselves,
it was impossible for anyone else to deploy them in those waters without the Albanian
Government coming to know of such activity. While this did not shift the burden of proof in any
way, it did leave room for some leeway to be given to UK.

The exclusive control exercised by a State within its frontiers may make it impossible to furnish
direct proof of facts which would involve its responsibility in case of a violation of international
law. The State which is the victim must, in that ease, be allowed a more liberal recourse to
inferences of fact and circumstantial evidence; such indirect evidence must be regarded as of
especial weight when based on a series of facts, linked together, and leading logically to a single
conclusion.

In the present case both evidence of the Albanian Government’s attitude (its intention to keep a
close watch on its territorial waters, its protest against the passage of the British fleet but not the
laying of mines, its failure to notify shipping of the existence of mines) and the fact that mine-
laying would have been visible to a normal lookout on the Albanian coast, lead the Court to
conclude that the laying of the minefield could not have been accomplished without the
knowledge of Albania.

“The obligations incumbent upon the Albanian authorities consisted in notifying, for the
benefit of shipping in general, the existence of a minefield in Albanian territorial waters
and in warning the approaching British warships of the imminent danger to which the
minefield exposed them.
Such obligations are based, not on the Hague Convention of 1907, No. VTII, which is
applicable in time of war, but on certain general and well-recognized principles, namely:
elementary considerations of humanity, even more exacting in peace than in war; the
principle of the freedom of maritime communication; and every State's obligation not to
allow knowingly its territory to be used for acts contrary to the rights of other States. In
fact, Albania neither notified the existence of the minefield, nor warned the British
warships of the danger they were approaching.” – ICJ Observation.

Conclusion

Albanian authorities could still have warned ships approaching the danger zone. There was an
interval of two hours between when the British ships were reported by a look-out post and the
time of the first explosion. No warning was given, and the Court held that the omission involves
international responsibility for the explosions, and the damage and loss of human life to which
they gave rise.

The Court ruled that Albania was liable under international law for the damage and casualties
caused by the mine explosions in the Corfu Channel, which happened in Albanian territorial
waters. The court stated that because of the British Royal Navy's actions in Albanian waters
on October 22, 1946, the United Kingdom did not violate Albania's sovereignty. Yet, when
the British Royal Navy initiated the operation for minesweeping in November 1946, it
breached the sovereignty of Albania. International mine clearing organisations did not
approve this operation, it could not be justified as exercising a right of innocent passage,
and it is against international law for one state to deploy a fleet in another state's territorial
seas and conduct minesweeping operations there.

In a third judgement, given on 15 December 1949, the Court estimated the amount of restitution
owing to the United Kingdom and ordered Albania to pay 844,000 USD as a compensation.
GABCIKOVO-NAGYMOROS PROJECT [ICJ DECISION OF 1997] – HUNGARY / SLOVAKIA

Facts

In 1977, Hungary (P) and Czechoslovakia (D) signed a Treaty for the construction of dams and
other projects along the Danube River that bordered both nations. Czechoslovakia (D) began
work on damming the river in its territory when Hungary (P) stopped working on the project and
negotiation could not resolve the matter which led Hungary (P) to terminate the Treaty. Hungary
(P) based its action on the fact that the damming of the river had been agreed to only on the
ground of a joint operation and sharing of benefits associated with the project, to which
Czechoslovakia (D) had unlawfully unilaterally assumed control of a shared resource.

Issue

Shall watercourse states participate in the use, development, and protection of an international
watercourse in an equitable and reasonable manner?

Law in Contention

Watercourse states shall participate in the use, development, and protection of an international
watercourse in an equitable and reasonable manner.

Finding and Reasoning of the Court

Yes. Watercourse states shall participate in the use, development, and protection of an
international watercourse in an equitable and reasonable manner. Hungary (P) was deprived of its
rights to an equitable and reasonable share of the natural resources of the Danube by
Czechoslovakia (D) and also failed to respect the proportionality that is required by international
law. Cooperative administration must be reestablished by the parties of what remains of the
project.

Conclusion

The Court’s decision was that the joint regime must be restored. In order to achieve most of the
Treaty’s objectives, common utilization of shared water resources was necessary. Hence, the
defendant was not authorized to proceed without the plaintiff’s consent.
NUCLEAR TESTS CASE [ICJ DECISION OF 1974] – AUSTRALIA AND NEW ZEALAND V.

FRANCE

Facts

A series of nuclear tests was completed by France (D) in the South Pacific. This action made
Australia and New Zealand (P) to apply to the I.C.J. demanding that France (D) cease testing
immediately. Before the case could be completed, France (D) announced it had completed the
test and did not plan any further test. So France (D) moved for the dismissal of the application.

Issue

Does declaration made through unilateral act has effect of creating legal obligations?

Legal Contention

Declaration made through unilateral acts may have the effect of creating legal obligations.

Finding and Reasoning of the Court

Yes. Declaration made through unilateral acts may have the effect of creating legal obligations.
In this case, the statement made by the President of France must be held to constitute an
engagement of the State regarding the circumstances and intention with which they were made.
Therefore, these statement made by the France (D) are relevant and legally binding. Application
was dismissed.

Conclusion

The unilateral statements made by French authorities were first relayed to the government of
Australia. There was no need for the statements to be directed to any particular state for it to have
legal effect. The general nature and characteristics of the statements alone were relevant for
evaluation of their legal implications.
PULP MILLS ON RIVER URUGUAY [ICJ DECISION OF 2010] – ARGENTINA V. URUGUAY

Facts

In October 2003, the Uruguayan government granted permission to the Spanish Company,
ENCE, to build a pulp mill in Fray Bentos, on the River Uruguay. Botnia, a Finnish company,
then also received environmental authorisation to build a mill in February 2005. The River
Uruguay forms a border between Argentina and Uruguay and its use is regulated by the Statute
of the Uruguay River, a bilateral treaty entered into by the two countries in 1975.

Argentina brought a complaint before the ICJ on 4 May 2006, alleging that the Uruguayan
government had violated the Statute. Argentina initially sought a provisional measures order
from the ICJ, suspending construction of the pulp mills, although this was dismissed. Argentina
consequently sought compensation, an end to construction, and a guarantee of compliance with
the Statute in the future.

Uruguay argued that its only obligations had been to inform Argentina, which it had done, albeit
after its decision. Furthermore, the technology used would avoid polluting the river, as state-of-
the-art waste cleansing equipment, which had been adopted by both the US and the EU as the
best available technology, was going to be used. This position was supported by an independent
World Bank study.

Issues Raised by Argentina

1. Whether Uruguay had not complied with the notification and consultation procedure set
out in the Statute by authorising the construction of two pulp mills without the prior
consent of Argentina?
2. Whether the mills would have an environmental impact on the river and surrounding
areas, that they would breach Uruguay’s obligation under the Statute to preserve the
aquatic environment of the river, by failing to protect biodiversity and fisheries?

Finding and Reasoning of the Court

Procedural Obligations - The ICJ held that Uruguay breached its procedural obligations by not
informing CARU of its plans to construct the mills before it issued its environmental
authorisations. Although Uruguay did notify Argentina, this communication did not take place
through CARU and this was only after the Uruguayan government had issued its authorisations.
The ICJ held that Uruguay “disregarded the whole of the co-operation mechanisms provided for
in Article 7 to 12 of the…Statute“. In terms of remedy, it considered that the declaration by the
ICJ of this breach constituted appropriate satisfaction.

Environmental Obligations - Argentina claimed that Uruguay had breached four different
substantive obligations in relation to the environmental well-being of the river. These were:

1. to contribute to the optimum and rational utilisation of the river;

2. to ensure that the management of the soil and woodland did not impair the quality of the
waters;

3. to co-ordinate measures to avoid changes in the ecological balance; and

4. to prevent pollution and preserve the aquatic environment.

However, the ICJ did not uphold any of these claims. With regard to the fourth claim, it held that
Argentina had not established that the concentration of the discharges of the Botnia mill
exceeded the limits set out in the Statute. To assess the environmental standards by which to
assess the claim, it applied not only the wording of the Statute, but also the digest adopted by
CARU, and the domestic regulations adopted by each party in relation to the Statute.

In a significant section of the judgment, the ICJ noted that the obligation to undertake an
environmental impact assessment where there is a risk that the proposed activity may have a
significant adverse impact in a trans-boundary context, has gained so much acceptance among
States that it may now be considered “a requirement under general international law“.
Interestingly, in the circumstances of the case, it did not find that this included a legal obligation
to consult the affected populations, although it noted that the consultation had in fact taken place.

The Court finally held that “there is no conclusive evidence in the record to show that Uruguay
has not acted with the requisite degree of due diligence or that the discharges of effluent from
the…[Botnia] mill have had deleterious effect or caused harm to living resources or to the
quality of the water or ecological balance of the river since it started its operations in November
2007.”
Conclusion

The ICJ considered that “its finding of wrongful conduct by Uruguay in respect of its procedural
obligations per se constitutes a measure of satisfaction for Argentina.”

Argentina may not however be entirely satisfied with the judgment given that the ICJ did not feel
able, in the absence of any finding of breach of the substantive obligations of the Statute, to
uphold any claim for compensation. Furthermore, the ICJ failed to see any special circumstances
requiring guarantees from the Uruguayan government to refrain from contravening the Statute.
CERTAIN ACTIVITIES CARRIED OUT BY NICARAGUA IN THE BORDER AREA (COSTA RICA V.
NICARAGUA) [ICJ DECISION OF 2105/2018]

Facts

On November 18, 2010, Costa Rica filed an action against Nicaragua in the International Court
of Justice (ICJ), alleging an “incursion into, occupation of and use by Nicaragua’s army of Costa
Rican territory as well as [alleged] breaches of Nicaragua’s obligations towards Costa Rica”
under a number of international treaties and conventions. As part of this proceeding, Costa Rica
sought compensation for the loss of environmental goods and services the country sustained due
to Nicaragua’s excavation of channels on its territory. Among the services for which Costa Rica
sought compensation was the impaired ability of the excavated area to provide “gas regulation
and air quality services, such as carbon sequestration.”

Costa Rica argued that Nicaragua had, on two separate incidents, occupied the territory of Costa
Rica in connection with the construction of a canal across Costa Rican territory from the San
Juan River to Laguna los Portillos (or “Harbor Head Lagoon”) and associated acts of dredging
on the San Juan River. Nicaragua removed nearly 300 trees and cleared 6.19 hectares of
vegetation in excavating the Costa Rican channels. The Costa Rican government sought
compensation for the impaired ability of the excavated area to provide environmental goods and
services including “gas regulation and air quality services, such as carbon sequestration.”

Issue

Can the ICJ award a country compensation for lost environmental goods and services, including
gas regulation and carbon sequestration, resulting from another country’s environment-damaging
activities?

Finding and Reasoning of the Court

On February 2, 2018, the ICJ ruled how much Nicaragua must compensate Costa Rica for the
loss of environmental services. This followed a ruling on the merits from December 16, 2015
that established that Nicaragua’s activities were unlawful and violated Costa Rica's territorial
sovereignty and navigational rights, as well as the Court's Order of 8 March 2011, and found that
Costa Rica should be compensated for these unlawful activities.
In ruling for Costa Rica, the ICJ reasoned that Nicaragua’s activities significantly undermined
the ability of the two areas to provide environmental goods and services. Because this loss of
environmental services was a direct result of Nicaragua’s actions, the ICJ ruled that Nicaragua
must compensate Costa Rica US$120,000 for the impairment or loss of the environmental goods
and services of the impacted area in the period prior to recovery. Furthermore, the ICJ did “not
consider that the impairment or loss” of carbon sequestration services could be valued as a one-
time loss. This was the first case wherein in ICJ adjudicated a claim for compensation for
environmental damage.
THE BERING SEA ARBITRATION OF 1893 – FUR SEAL CASE [ASSER ARBITRATION OF 1893]

Facts

The USA after purchasing land from Russia (Alaska) and demarcating the islands and waters
purchased as their sovereign territory, passed acts in 1868 and 1873 to prohibit the activity of
sealing on and near the Pribilof Islands. Beginning in about 1886, it became the practice of
certain Canadian vessels to intercept passing seals in the open ocean (over three miles from any
shore) and shoot them in the water (pelagic sealing), often killing both male and female.

The great drawback of pelagic sealing lies in the fact that nursing seal mothers wander far in
search of food, while the males do not take food during the breeding season, but remain on the
islands. Consequently, practically all the seals taken by pelagic sealers are nursing females, the
death of which ordinarily results in the starvation of the pups. As a result of this practice, the real
possibility of the destruction of the seal fisheries became apparent, together with industries
valuable to both the United States and Great Britain.

Negotiations failed between the USA and UK since UK and Canada would perpetually remain
out of access if the pelagic zone was made a protected zone since they did not have direct access
to either of the breeding grounds that USA and Russia had access to. On February 29, 1892, a
definitive treaty was signed at Washington, D.C. Each power was to name two arbitrators, and
the president of the French Republic, the king of Italy, the king of Norway and Sweden were
each to name one.

Issues Raised

1. Was the body of water now known as Bering Sea included in the phrase "Pacific Ocean", as
used in the treaty of 1825 between Great Britain and Russia, and what rights, if any, in
Bering Sea were held exclusively exercised by Russia after the said treaty?

2. Did the USA inherit all, if any, of the rights that Russia previously possessed and if so, to
what extent could the USA claim sovereignty in the “Bering Sea”?

Finding and Reasoning of the Arbitrators

The Award of 1893 was in favour of Great Britain. Since the decision was in favour of Great
Britain, in accordance with the arbitration treaty the tribunal prescribed a series of regulations for
preserving the seal herds which were to be binding upon and enforced by both powers. They
limited pelagic sealing as to time, place, and manner by fixing a zone of 60 miles around the
Pribilof Islands within which the seals were not to be molested at any time, and from May 1 to
July 31 each year they were not to be pursued anywhere in Bering Sea. Only licensed sailing
vessels were permitted to engage in fur sealing, and the use of firearms or explosives was
prohibited. The regulations were to remain in force until abolished by mutual agreement, but
were to be examined every five years with a view to modification.

These regulations, however, failed of their object, because the mother seals did not feed within
the protected area, but far outside of it. The mother seals were therefore taken by the pelagic
sealers as before, and their young were left to starve. Finally on July 7, 1911, the North Pacific
Fur Seal Convention of 1911 severely curtailed the sealing industry. The treaty went into effect
on December 15, 1911, and continued for fifteen years mandating that the Pribilof Islands
become a sanctuary for seals.
TRAIL SMELTER ARBITRATION (UNITED STATES V. CANADA) – TRIBUNAL AWARD OF 1905

Facts

The Trail Smelter located in British Columbia since 1906, was owned and operated by a
Canadian corporation. The resultant effect of from the sulfur dioxide from Trail Smelter resulted
in the damage of the state of Washington between 1925 and 1937. This led to the United States
(P) suit against the Canada (D) with an injunction against further air pollution by Trail Smelter.

Issues

Is it the responsibility of the State to always protect other states against harmful acts by
individuals from within its jurisdiction?

Legal Position

The duty to protect other states against harmful acts by individuals from within its jurisdiction
always is the responsibility of a state.

Finding of the Tribunal

Yes. It is the responsibility of the State to always protect other states against harmful act by
individuals from within its jurisdiction. No state has the right to use or permit the use of the
territory in a manner as to cause injury by fumes in or to the territory of another or the properties
or persons therein as stipulated under the United States (P) laws and the principles of
international law.

By looking at the facts contained in this case, the arbitration held that Canada (D) is responsible
in international law for the conduct of the Trail Smelter Company. Hence, the onus lies on the
Canadian government (D) to see to it that Trail Smelter’s conduct should be in line with the
obligations of Canada (D) as it has been confirmed by international law. The Trail Smelter
Company will therefore be required from causing any damage through fumes if the present
conditions of air pollution exist in Washington.

So, in pursuant of the Article III of the convention existing between the two nations, the
indemnity for damages should be determined by both governments. Finally, a regime or measure
of control shall be applied to the operations of the smelter since it is probable in the opinion of
the tribunal that damage may occur in the future from the operations of the smelter unless they
are curtailed.

Conclusion

Responsibility for pollution of the sea or the existence of a duty to desist from polluting the sea
has never been laid at the feet of any country by any international tribunal. Although regulation
of pollution is just commencing, it must ensure that there is equilibrium against freedom of the
seas guaranteed under general and long-established rules of international law.