Table Of ContentROUTLEDGE RESEARCH IN INTERNATIONAL LAW
The ICJ and the Evolution of
International Law
Corfu Channel
The enduring impact of the
case
Edited by
Karine Bannelier, Theodore Christakis and
Sarah Heathcote
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The ICJ and the Evolution of
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3 International Law
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3 In 1949 the International Court of Justice (ICJ) handed down its fi rst judgment in the
4 Corfu Channel case. In diffusing an early Cold War dispute, the Court articulated a set
5 of legal principles which continue to shape our appreciation of the international legal
6 order. Many of the issues dealt with by the Court in 1949 remain central questions in
7 international law, including due diligence, forcible intervention and self-help, mari-
8 time operations, navigation in international straits and the concept of elementary
9 considerations of humanity. The Court’s decision has been cited on numerous occa-
0 sions in subsequent international litigation. Indeed, the relevance of this judgment
1 goes far beyond the subject matter dealt with by the Court in 1949, extending to
2 pressing problems such as transboundary pollution, terrorism and piracy. In short, it
3 was and remains a thoroughly modern decision – a landmark for international law; and
4 one which today still warrants examination sixty years later.
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6 T aking a critical approach, The ICJ and the Evolution of International Law examines the
7 decision’s infl uence on international law generally and on some fi elds of international
8 law such as the law of the sea and the law of international responsibility specifi cally.
9 The book collects the commentary of a distinguished set of international law scholars,
0 including four well-known international judges. The contributors consider not only
1 the history of the Corfu Channel Judgment and its contribution to the development of
2 international law, but also its resonance in many contemporary issues in the fi eld of
3 international law.
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T his book will be of particular interest to academics and students of International
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Law, International Relations and Legal History.
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Karine Bannelier is Associate Professor at the Faculty of Law of the University of
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Grenoble, France and Director of the Master Degree on International Security and
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Defense Studies.
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Theodore Christakis is Professor of International Law and Director of the Centre for
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International Security and European Studies of the University of Grenoble, France.
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4 Sarah Heathcote is Senior Lecturer at the Australian National University College of
5 Law, Canberra, Australia.
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Routledge Research in International Law 2
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Available:
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International Law and the Third World
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Reshaping justice
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Richard Falk, Balakrishnan Rajagopal and Jacqueline Stevens (eds.)
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International Legal Theory
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Essays and engagements, 1966–2006
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Nicholas Onuf
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The Problem of Enforcement in International Law
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Countermeasures, the non-injured state and the idea of international community
2
Elena Katselli Proukaki
2
2
International Economic Actors and Human Rights
2
Adam McBeth
2
3
The Law of Consular Access
3
A documentary guide
3
John Quigley, William J. Aceves and Adele Shank
3
3
State Accountability under International Law
3
Holding states accountable for a breach of j us cogens norms
3
Lisa Yarwood
3
3
International Organisations and the Idea of Autonomy
3
Institutional independence in the international legal order
4
Richard Collins and Nigel D. White (eds)
4
4
Self-Determination in the Post-9/11 Era
4
Elizabeth Chadwick
4
4
1 Participants in the International Legal System
2 Multiple perspectives on non-state actors in international law
3 Jean d’Aspremont
4
5 Sovereignty and Jurisdiction in the Airspace and Outer Space
6 Legal criteria for spatial delimitation
7 Gbenga Oduntan
8
9 International Law in a Multipolar World
0 Matthew Happold (ed.)
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2 The Law on the Use of Force
3 A feminist analysis
4 Gina Heathcote
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6 The ICJ and the Evolution of International Law
7 The enduring impact of the C orfu Channel case
8 Karine Bannelier, Theodore Christakis and Sarah Heathcote (eds)
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Forthcoming titles in this series include:
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International Law, Regulation and Resistance
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Critical spaces
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Zoe Pearson
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The Right to Self-determination under International Law
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“Selfi stans,” secession, and the Great Powers’ rule
8
Milena Sterio
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The Cuban Embargo under International Law
1
El bloqueo
2
Nigel D. White
3
4
Threats of Force
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International law and strategy
6
Francis Grimal
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8
Asian Approaches to International Law and the Legacy of Colonialism
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and Imperialism
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The law of the sea, territorial disputes and international dispute settlement
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Jin-Hyun Paik, Seok-Woo Lee and Kevin Y. L. Tan (eds)
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The ICJ and the Evolution of
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International Law
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6 The enduring impact of the
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Corfu Channel case
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Edited by Karine Bannelier,
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Theodore Christakis and Sarah Heathcote
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First published 2012 2
by Routledge 3
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
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Simultaneously published in the USA and Canada
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by Routledge
711 Third Avenue, New York, NY 10017 6
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Routledge is an imprint of the Taylor & Francis Group, an informa business
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© 2012 Karine Bannelier, Theodore Christakis and Sarah Heathcote selection
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and editorial material; individual chapters, the contributors
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The right of Karine Bannelier, Theodore Christakis and Sarah Heathcote to be
identifi ed as editors of this work has been asserted by them in accordance with 1
sections 77 and 78 of the Copyright, Designs and Patents Act 1988. 1
All rights reserved. No part of this book may be reprinted or 1
reproduced or utilised in any form or by any electronic, 1
mechanical, or other means, now known or hereafter
1
invented, including photocopying and recording, or in any
information storage or retrieval system, without permission in 1
writing from the publishers. 1
Trademark notice : Product or corporate names may be trademarks or registered 1
trademarks, and are used only for identifi cation and explanation without 1
intent to infringe.
2
British Library Cataloguing in Publication Data
2
A catalogue record for this book is available from the British Library
2
Library of Congress Cataloging in Publication Data
2
The ICJ and the development of international law : the lasting impact of
the Corfu Channel case / [edited by] Karine Bannelier, Théodore Christakis, 2
Sarah Heathcote. 2
p. cm. — (Routledge research in international law)
2
Includes bibliographical references and index.
ISBN 978-0-415-60597-7 (hardback) — ISBN 978-0-203-61068-8 2
(e-book) 1. International Court of Justice. 2. International law. 2
3. Corfu Channel case. 4. Law of the sea. 5. Government liability
2
(International law) I. Bannelier, Karine. II. Christakis, Théodore.
III. Heathcote, Sarah. 3
KZ6275.I25 2011 3
341—dc22
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2011016348
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ISBN: 978–0–415–60597–7 (hbk) 3
ISBN: 978–0–203–61068–8 (ebk)
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Typeset in Garamond 3
by Refi neCatch Limited, Bungay, Suffolk 3
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Contents
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3 List of contributors xi
4 Preface xv
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PART I
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Views from the Bench: the legacy of the Corfu Channel case 1
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9 1 An international contentious case on the threshold
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of the Cold War 3
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MOHAMMED BEDJAOUI
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3 2 The Corfu Channel case and the concept of sovereignty 16
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MOHAMED BENNOUNA
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6 3 The bar 21
7 JEAN-PIERRE COT
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9 PART II
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The historical and institutional framework 39
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2 4 The Corfu Channel case in perspective: the factual
3 and political background 41
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ARISTOTELES CONSTANTINIDES
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6 5 The International Court of Justice and the Security
7 Council: disentangling Themis from Ares 60
8 GIOVANNI DISTEFANO AND ETIENNE HENRY
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PART III
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Procedural and evidential issues before the World Court 85
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3 6 The basis of the Court’s jurisdiction and the scope
4 and usefulness of forum prorogatum 87
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HENRY BURMESTER
viii Contents
7 The International Court of Justice and standards of proof 98 1
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KATHERINE DEL MAR
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8 ‘Naval secrets’, public interest immunity and open justice 124 4
KENNETH J. KEITH 5
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PART IV
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Law of the Sea 147
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9 International straits: still a matter of contention? 149
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STUART KAYE
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10 Dangerous waters and international law: the Corfu 1
Channel case, warships, and sovereignty irritants 164 1
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ROB MCLAUGHLIN
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11 Peacetime maritime operations 181 1
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DONALD R. ROTHWELL
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PART V
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Fundamental rules of international law 199 2
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12 The Court’s decision in silentium on the sources of
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international law: its enduring signifi cance 201
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AKIHO SHIBATA 2
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13 Intervention and self-help 211
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THEODORE CHRISTAKIS 2
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14 A policy of force 226
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CHRISTINE GRAY
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15 Foundational judgment or constructive myth? 3
The Court’s decision as a precursor to international 3
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environmental law 242
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KARINE BANNELIER
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16 The interaction between international humanitarian 3
law and human rights law and the contribution of the ICJ 256 3
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DJAMCHID MOMTAZ AND AMIN GHANBARI AMIRHANDEH
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17 Elementary considerations of humanity 264 4
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MATTHEW ZAGOR
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Contents ix
1 PART VI
2 Issues of state responsibility 293
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4 18 State omissions and due diligence: aspects of fault,
5 damage and contribution to injury in the law of
6 state responsibility 295
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SARAH HEATHCOTE
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9 19 The limits of complicity as a ground for responsibility:
0 lessons learned from the Corfu Channel case 315
1 OLIVIER CORTEN AND PIERRE KLEIN
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20 Reparation and compliance 335
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4 PIERRE D’ARGENT
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21 Conclusion 357
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7 HILARY CHARLESWORTH
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9 Index 363
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