2.-0BSERV;ITIOXS ASD SUBMISSIOXS
OF THE GOVERSJIEST OF THE UKITED KIXGDOJI
OF GREAT BRITXIS .\XD XORTHERS IRELASD
Pzlrsziavztto the Ordeof the Presidentof 10th Decet~~ber1,947,
nlzd drticle 63, pnvagraph 3, of the Rzrlesof Court.
THE Government of the United Kingdom submits the follow-ing
observations upon the letter of the Albanian Government dated
9th December, 1947,addressed to the Registrar of the Court and
raising a preliminary objection to the jurisdiction of the Court to
proceed with the trial of this dispute.
2. The Government of the United Kingdom recalls that the
decision of the Security Council of 9th April1947, was to "recom-
mend that the United Kingdom and Xlbanian Governments should
immediately refer the dispute to the International Court inaccord-
ance with the provisions of the Statute of the Court". Apart
from the question of the applicability of Article2j of the Charter
(as to which see para. 12 below), the action which \ras tnken by
the Government of the Vnited Kingdom upon this decision \vas
based first upon the espresscd wish of the Security Council that
immediate action should be takcn, and secondly, upon the fact
that the Resolution in question made no mention of the conclusion
of a special agreement but merely recommended both Govern-
ments to refer the dispute to the Court. The Government of the
United Kingdom n-as unreservedly \villing so to refer the dispute
and it assumed that the attitude of the Government of Xlbania
\vould be the same.
3. The Government of the United Kingdom accordingly referred
the dispute to the Court on 13th lfay, 1947, by its Application
under Articles 36 (1)and 40 (1) of the Statute of the Court.
4. The Government of -4lbania defined its attitude by its letter
of 2nd July, 1947, addressed to the Court. In that letter-a copy
of which is annesed (.\nnex)-the Government of Xlbania began
by taking exception to tlie manner in which the Government of
the United Kingdom had referred the matter to the Court and
contended that it should first have concluded a special agreement
with the Government of Albania. It went on to state that "the
Albanian Government would be within its rights in holding that
the Government of the United Kingdom was not entitled to bring
the case before the Court by unilateral application without first
concluding a special agreement with the Albanian Goirernment". BRITISH OBSERVATIONS AND SUBYISSIONS (19 1 48)
15
The words "would be within its rights inholding" are only approp-
riate to describe the attitude of a party, which considers that it
might take a certain objection but nevertheless is not going to do
so. The letter continued that the Albanian Government "for its
part fully accepts the recommendation of the Security Council"
and that "notwithstanding this irregularity in the action taken by
the Government of the United Kingdom" the Government of
Albania was "prepared to appear before the Court". This sen-
tence, following on the previous one, indicates even more clearly
an intention to waive the possible objection that had been referred
to before and to proceednotwithstanding this irregularity, if irreg-
ularity it were. The Albanian Government stated the most
explicit reservations regarding the interpretation placed by the
Government of the United Kingdom on Article 25 of the Charter
and wished "to emphasize that its acceptance of the Court's juris-
diction for this case cannot constitute a precedent for the future".
The mention of a reservation with regard to the manner in which
the United Kingdoin had brought the case before the Court and
to the interpretation placed by the United Kingdom on Article 2j
of the Charter, followedby the sentence that the Albanian Govern-
ment "wishes to emphasize that its acceptance of the Court's juris-
diction for this case cannot constitute a precedent for the future",
amply confirms the conclusion already inevitably drawn from the
two previous passages that the Albanian Government waived any
possible objection to the jurisdiction. The letter then concludes
with the appointment of an Agent. It is, moreover, clcar from
this letter that the Albanian Government took the view that the
issues in dispute were clearly defined by the Resolution of the
Security Council and by the Application of the Government of the
United Kingdom, and accepted the jurisdiction of the Court to
pronounce upon the issues so defined, without prejudice to its
views as to the binding character of the Security Council's Resolu-
tion and of the meaning of Article 2j of the Charter.
j. For these reasons the Government of the United Kingdom
placed upon this letter the interpretation which, it is submitted,
is the only interpretation that itan reasonably bear, nameiy, that
the Government of Albania was prepared, notwithstanding an
alleged procedural irregularity, to accept the jurisdiction of the
Court in this case, and that further pleadings would be directed
to the rnerits of the dispute.The Government of the United King-
dom refers in this connexion to paragraph 2 of its Memorial.
6. It appears that the same interpretation was placed upon the
letter of the Albanian Government by the President of the Court
who, in hisOrder of the 31st July, 1947,after referring to Articles 36
and 40 of the Statute of the Court, to the Application dated
the 13th May, 1947, of the Government of the United Kingdom,
to the letter of the Government of Albania dated the 2nd JuIy.16 BRITISH OBSERVATIOXS AXD SUBMISSIO?r'S (19 1 4s)
1947, and to the nomination of Agents by the two Governments,
and after stating that the views of the Parties had been ascer-
tained with regard to questions of procedure, concluded by
ordering the delivery of lIemorials, by the Government of the
United Kingdom by the 1st October, 1947, and by the Govern-
ment of Albania by the 10th December, 1947.
The following two extracts from the recitals of the Order
7.
may be specially referred to : The eighth recital encls:"but whereas
the Alhanian Government, fully accepting for its part the recom-
mendation of the Security Council, is prepared, notwithstanding
this irregularity and in evidence of its devotion to the principles
of friendly collaboration between nations and of the pacific settle-
ment of disputes, to appear before the Court". The President \vas
al1 the more justified in interpreting the Albanian Government's
letter as giving Albania's consent to the submission of this dispute
without further formalities to the Court because, as the Permanent
Court has already said in a passage of Judgment So. 12 which is
quoted in paragraph IO (b) below, "the acceptance by a State of
the Court's jurisdiction in a particular case is not, under the Stat-
ute, subordinated to the observance of certain forms such, for
instance, as the previous conclusion of a special agreement".
The tenth recital of the President's Order reads : "\i'hereas,
havingregard to the Resolution of the Security Councilof .\pril gth,
1947, the said note of the Albanian Government may be regarded
as constituting the document mentioned in Article 36 of the Rules
of Court." The conditions, laid down by the Security Council
under Article 3j of the Court's Statute, under which the Court shall
be open to a State which is not a party to the Statute, are that the
State shall have deposited with the Registrar a declaration, under
which it accepts the jurisdiction of the Court in accordance with
the Charter of the United Sations and with the terms, and subject
to the conditions, of the Statute and Rules of Court, and under-
takes to comply in good faith with a decision of the Court, and
to accept al1 the obligations of a JIember of the United Xations
under Article 9-1of the Charter. Article 36 of the Rules of Court
provides for the deposit of this declaration. The President inter-
preted this letter from the Albanian Government, taken in conjunc-
tion with the Resolution of the Security Council, as a document
satisfying the conditions of Article 36 of the Rules of Court.
8. The question arising on the Albanian preliminary objection
is whether the Court has jurisdiction. The manner, in which the
Court approaches questions of jurisdiction, is stated in the follow-
ing observations delivered on 6th July, 1927, in the Caseconcern-
ing the Factory atChorzow(Jztrisdiction), Judgment No. 8,Series A.,
No. g, page 32 :-
"It has been argued repeatedly in the course of the present
proceedingsthat in case of doubt the Court should decline juris- BRITISH OBSERVATIONS AND SUBMISSIONS (19 I 48) 17
diction. It is true that the Court's jurisdiction is always a limited
one, existing only in so far isStates have accepted it ;secondly l,
the Court will, in the event of an objection-or when it has
automatically to consider the question-only affirm its juris-
diction provided that the force of the arguments rnilitating in
favour of it is preponderant. The fact that weighty arguments
can be advanced to support the contention that it has no juris-
diction cannot of itself create a doubt calculated to upset its
jurisdiction. When considering whether it has jurisdiction or
not, the Court's aim is always to ascertain whether an intention
on the part of the parties exists to confer jurisdiction upon it.
The question as to the existence of a doubt nullifying its juris-
diction need not be considered when, as in the present case, this
intention can be demonstrated in a manner convincing to the
Court."
The Government of the United Kingdom accordingly sub-
mits that :-
(a) Ithas fully complied with the recommendation of the Security
Council immediately to refer the dispute to the Court.
It did so in its Application of 13th May, 1947, which fully
and clearly indicated the subject of the dispute, and the
parties, in accordance with Article 40 (1) of the Statute
of the Court and Article 32 (2) of the Rules of Court.
(b) The Government of Albania, after delivery of the United
Kingdom Application, stated in its letter of 2nd July, 1947,
that it fully accepted the recommendation of the Security
Council, and that it was prepared to appear before the
Court and to accept its jurisdiction in this case.
(c) This Albanian letter, coupled with the Resolution of the
Security Council of 9th April, 1947, was accepted by
the President of the Court as a document which satisfied
the conditions laid down by the Security Council
for the appearance before the Court of a State not party
to the Statute. (See Resolution of the Security Council
of ~jth October, 1946, under which a State not party to
the Statute may make a "particular declaration" accepting
the jurisdiction of the Court in respect of a particular
dispute only.)
(d) In these circumstances the jurisdiction of the Court to make
the Order of 31st July, 1947, and to proceed with the
trial of this dispute is fully established. Under Article 36
(1) of the Statute, the jurisdiction of the Court comprises
al1 cases which the parties refer to it, and there is no
dispute which States entitled to appear before the Court
cannot refer to it. (See Judgment No. 13 referred to in
paragraph IO (c) below-the exception there mentioned
is not relevant.) The parties have clearly referred the
1 In the Court's judgment, the word:iconsequently. [Note by the Registrar.] present dispute by the above-mentioned documents
(namely, the United Kingdom Application of 13th May,
1947, and the Albanian letter of 2nd July, 1g47), which,
whether or not they constitute a "special agreement", at
least constitute a "reference". A special agreement is not
necessary (see passage in Judgrnent No. 12 referred to in
paragraph IO (b) below).
(e) Article 40 of the Statute merely defines the forma1 basis for
action by the Court in a case where jurisdiction is estab-
lished by Article 36 (1). There is nothing in the Statute
or the Rules of Court which prevents the proceedingsbeing
formally instituted by application, even though the juris-
diction of the Court is established by a "reference" by the
parties or by a "special agreement". Accordingly the
Government of the United Kingdom, in bringing this
matter before the Court by application, has, it is submitted,
proceeded correctly. (See on this point Judgment h'o. 4
referred to in paragraph IO (e) below.)
(f) Further, there has been, in fact, an agreement between the
parties constituted by the acceptance of the jurisdiction
on the part of the Government of the United Kingdom in
cornpliance with the Resolution of the Security Council
of 9th April, 1947 (as evidenced by its Application of
13th Atfay,1g47), followed by an acceptance of the juris-
diction on the part of the Government of Albania in its
letter of 2nd July, 1947, to refer (without prejudice to the
Albanian Government's view as to the interpretation of
Article 25 of the Charter) to the Court the issues defined
in the Application. This agreement possessesal1the essen-
tials of a "special agreement" and conforms fully with
Article 40 of the Statute. (SeeJudgments Nos. 13 and 5
referred to in paragraphs IO (c)and IO (d) below.)
(g) Even if (which is not admitted) there was any forma1irreg-
ularity in the mode of the commencement of the present
proceedings, this irregularity has been cured, because the
Albanian Government by its letter of 2nd July, 1947,
has waived any possible objection and has consented to
the jurisdiction of the Court. An irregularityin the manner
in which a case is introduced may be cured by subsequent
events. (SeeJudgment No. 2 referred to in paragraph IO
(f) below.)
(Iz)Having once consented to the jurisdiction, the Albanian
Government cannot afterwards withdraw its consent.
(See in this connexion Judgment No. 12 referred to in
paragraph IO (a) below.)
(i) The President's Order of 31st July, 1947, clearly proceeded
upon the basis that the Albanian Government had def-
initely accepted the jurisdiction, as was, in fact, the case. It is not competent for the Albanian Government to reopen
the question of jurisdiction.
IO. IVith reference to the submissions contained in the pre-
ceding paragraph, the Government of the United Kingdom
invites the attention of the Court to the following cases decided
by the Permanent Court of International Justice :-
.
(a) In Judgment No. 12, dated 26th April, 1928, and entitled
Rights of Al-Iinoritiin Upper Silesia (~Minorities Schools),Series A.,
Ko. Ij, the Court dealt with a dispute which arose between the
Governments of Gennany and Poland regarding the interpretation
of certain provisions in the German-Polish Convention relating to
Upper Silesia of 15th May, 1922. An objection to the jurisdiction
was raised by the Polish Government in their written Rejoinder ;
that is to Say, the Polish Govemment sought to retract an accept-
ance of the jurisdiction which it had by its conduct previously
given at an earlier stage of the case. The Court had occasion to
considcr ArticIe 38 of the Rules of Court, which (dealing with
preliminary objections) u7as substantially the same as Article 62
of the Rules of the present Court, and observed as follows :-
"The object of this article was to lay down when an objectioii
to the jurisdiction may validly be filed, but only in cases where
the objection is submitted as a preliminary question, that is to
sa-, when the Kespondent asks for a decision upon the objection
before any subsequent proceedings on the merits. It is exclus-
ively in this event that the article lays down what the rocedure
should be and that this procedure should be different rom that
oto the jurisdiction which is not filed as a preliminary objection
in the sense indicated above, can be taken at any stage of the
proceedings. The Court's jurisdiction depends on the will of
the Parties. The Court is always competent once the latter have
accepted its jurisdiction, since there is no dispute which States
entitled to appear before the Court cannot refer to it." (See
pp. 20-22.)
The Court thus held that a government having by its conduct at
an earlier stage of the proceedings accepted the jurisdiction could
not withdraw that acceptance.
(b) The Permanent Court in the same case stated :-
particular case is not, under the Statute, subordinated to the
observance of certain forms such as, for instance, the previous
conclusion of a special agreement. Thus, in Judgment No. 5
[see (d) belo~v]the Court has accepted as sufficient forthe purpose
of establishing its jurisdiction a mere declaration made by the
Respondent in the course of the proceedings agreeing that the
Court should decide a point which, in the Court's opinion, would
not otherwise have corne within its jurisdiction.And there seems
to be no doubt that the consent of a State to the submission of 20 BRITISH OBSERVATIOXS AND SUBMISSIONS (19 I 48)
a dispute to the Court may not only result from an express
declaration, but may also be inferred from acts conclusively
establishing it." (See pp. 23-24.)
Later in its judgment the Court said :-
"...there is no rule laying down that consent must take the
form of an express declaration rather than that of acts conclu-
sively establishing it. If, in a special case, the Respondent has,
by an express declaration, indicated his desire to obtain a decision
on the merits and his intention to abstain from raising the question
proceedings, go back upon that declaration." (See p.er on25.)the
(c) In Judgment No. 13, given on 13th December, 1928, in the
Chorzdw Factory case (Jierits), the Court reaffirmed the position
adopted in Judgment Xo. 12 (see (a) above). In this case the par-
ties were Germany and Poland. The latter in its Rejoinder based
certain arguments on Article 2j6 of the Treaty of Versailles. The
German Government in its reply, whilst observing that it might
be doubtful xvhether the Court had jurisdiction to interpret the
. provisions in question, nevertheless declared that it \vas "animated
by a wish to see the Chorzow case settled", and that it "abstained
from undertaking a detailed examination of the questions of lack
of jurisdiction or prematurity" ; and so, in effect, \\-ai\-cd any
objections to the jurisdiction. The Court said :-
"As the Court has said in Judgment No. 12, coiicerningcertain
rights of minorities in Upper Silesia, Article 36 of the Statute
establishes the principle that the Court's jurisdiction depends
on the will of the Parties ; the Court therefore is always com-
petent once the latter have accepted its jurisdiction, since there
is no dispute which States entitled to appear before the Court
cannot refer to it,Save in exceptional cases where a dispute may
be within the escliisiïe jurisdiction ofsomeother body." (SeriesA.,
No. 17, P. 37.)
(d) Again, in its Judgment Ko. j, given on 26th Blarch, 1925,
in the flfavronzncatis Jerttsalenz Concessions case (referred to by
the Court in Judgment Xo. 12-see (b)above), the Court considered
that it had jurisdiction, in conformity with Article 36 (1) of its
Statute, as the result of the written proceedings in the case. This
was a dispute between the Governments of Greece and the United
Kingdom. The proceedings were begun by the Greek Govern-
ment by application based on Articles II and 26 of the Mandate
for Palestine. The Greek Government alleged that the Goverri-
ment of Palestine, and consequently also the Government of the
United Kingdom, in its capacity as Mandatory Power for Palestine,
had wrongfully refused to recognize to their full extent the righta
acquired by M. IvIavrommatis, a Greek subject, under contracts
and agreements concluded by him with the Ottoman authorities
iiiregard to concessions for certain public works to be constructedin Palestine. The Government of the United Kingdom filed a
preliminary objection as to the competence of the Court to enter-
tain the proceedings in question. The Court in Judgment No. 2
(see (f) below) dismissed this objection, and therefore decided that
it had jurisdiction to deal with the case generally. In Judgment
No. j (merits), the Court explained the grounds on which it had
jurisdiction to decide a point, which would still not have been
within its jurisdiction as established under its Judgment Xo. 2.
This point was which articles of Protocol XII (beinga supplemen-
tary instrument to the Treaty of Lausanne, 1923) were applicable
to the concessions granted to M. Mavrommatis. Under its Judg-
ment No. 2, which was based on Article 26 of the Mandate, the
Court had jurisdiction to interpret the Mandate but not to inter-
pret Protocol XII. In this connexion the Court made the fol-
lowing observations :-
"It is not by reason of the jurisdiction conferred on the Court
under Article 26 of the Mandate, but in consequence of an
agreement between the Parties resulting from the written pro-
ceedings, that the Court has jurisdiction (Article 36, first para-
graph, of the Statute) to decide whether M. 3Iavrommatis'
Jerusalem Concessionsfa11to be dealt with under Articles4 and 5;
or Article 6 of the Protocol." (Series A., Ko.j, p. 27.)
(e) In Judgment Ko. 4, given by the Court's Chamber of Sum-
rnary Procedure on 26th IIarch, 192j. in the matter of the Ittter-
pretafio?of pnrngrnph 4 ofthe Atznex folloruing Article 179 of the
Tvcnty of Neziilly, the Court construed as an "agreement" between
the Parties the fact that the Agent of the Bulgarian Government
submitted observations regarding the request f Greece without
disputing the jurisdiction of the Court to give the interpretation
requested. The Court said :-
letter of December goth,of1924,Bsubmitted observations regarding
the Greek Government's request for an interpretation, without
disputing the Court's jurisdiction to give such interpretation ;
and as therefore the Court has jurisdiction to do so as the result
of this agreement between the Parties, so that there is no need
for the Court to consider in the present case whether, in the
absence of a definite dispute between the Parties regarding the
interpretation of the judgment of September ~zth, 1924, the
requisite jurisdictionould be based exclusively on the unilateral
request made by the Greek Government." (Series .Y, Xo. 4,
PP. 5, 6.)
(f) Judgment No. 2 given by the Court on 30th August, 1924,
in the Afavrommntis Palestine Concessions case (Jidrisdiction) is
also of particular interest, as showing that an application which
was irregular at the time at which it was submitted to the Court
-a situation which the Albanian Government, contrary to the
view of the Government of the United Kingdom, alleges to have2 2 BRITISH 0BSERT.ATIONS AND SUB3IISSIONS (19 1 48)
existed at the beginning of the present proceedings-can be reg-
iilarized by subsequent events. That subsequent event, in the
present case, is the express acceptance by the Albanian Govern-
ment, in its letter of and July, 1947, of the jurisdiction of the
Court. In Judgment No. 2 the subsequent event was the entry
into force of an international instrument, necessary to justify the
application. The Court there dealt with a preliminary objection
to the jurisdiction raised by the Government of the United King-
dom (see (d) above). Article II of the Mandate for Palestine
provided as follou?s :"The Administration of Palestine shall take
al1 necessary measures to safeguard the interests of the community
in connexion with the development of the country, and, subject
to any international obligations accepted by the Mandatory, shall
have full power to provide for public ownership or control of any
of the natural resources of the country or of the public works,
services and utilities established or to be established therein."
Article 26 of the Mandate provided as follows : "The Mandatory
agrees that, if any dispute whatever should arise between the
Mandatory and another Member of the League of Nations relat-
ing to the interpretation or the application of the provisions
of the Mandate, such dispute, if it cannot be settled by nego-
tiation, shall be submitted to the Permanent Court of Justice1
provided for by Article 14 of the Covenant of the League of Nations."
By Article 9 of Protocol Xo. XII of the Treaty of Lausanne, it \vas
protided that in any territories detached from Turkey under the
Treaty of Peace, the State which acquired the territory was fully
subrogated as regards rights and obligations of Turkey towards
nationals of other contracting Powers. The Greek Government
maintained that Protocol No. XII created an international obli-
gation within the meaning of Article II of the Mandate. The
Court upheld this contention ; but the Government of the United
Kingdom relied on the fact that the Protocol was not in force at
the time when the final negotiations betiveen Greece and Great
Britain, in regard to IIavrommatis, took place, nor at the time
when Greece filed its application. On this point the Court made
the following observations :-
"In the same connexion it must also be considered whether
the validity of the institution of proceedings can be disputed on
the ground that the application was filed before Protocol XII
had become applicable. This is not the case. Even assuming
that before that time the Court had no jurisdiction because the
international obligation referred to in Article II was not yet
effective, it would always have been possible for the applicant
to re-submit his application in the same terms after the coming
into force of the Treaty of Lausanne, and in that case, the
argument in question could not have been advanced. Even if
lIn tlie Court's jiidgment : Permanent Court of InternatJustice.[iyote
by the Registrur.] BRITISH OBSERVATIONS AYD SUBMISSIONS (19 1 48) 23
the grounds on which the institution of proceedings was based
were defective for the reason stated, this would not be an adequate
reason for the dismissal of the applicant's suitThe Court, whose
jurisdiction is international, is not bound to attach to matters
of form the same degree of importance which they might possess
in municipal law. Even, therefore, if the application were pre-
mature because the Treaty of Lausanne had not yet been ratified,
this circumstance would now becovered by the subsequent deposit
of the necessary ratifications." (Series A., No. 2, p. 34.)
II. The foregoing survey of the practice of the Court in para-
graph IO above may appear to be almost otiose seeing that the
effect of the Albanian letter (see paras. 2 to 7 above) is so clear.
The survey, however, shows that, in assuming jurisdiction, the
C.ourt has been invariably guided by the intention of the parties
as distinguished from requiring that intention to be expressed in
any particular form ; that, when justifiable, it has construed the
conduct of the parties as an implied acceptance of its jurisdiction ;
that the Court has declined to hold the acceptance of jurisdiction
to be dependent upon compliance with certain forms; that an
acceptance of the jurisdiction once given by conduct cannot be
revoked ; and that any initial irregularity in the commencement
of the proceedings can be cured by subsequent conduct of the
parties. In the present case thereis a clear and express acceptance
of the jurisdiction of the Court on the part of the Respondent
Government. However, should there exist any doubt on the
question it ought, in the view of the Government of the United
Kingdom, to be fully dispelled by the preceding review of the
praitice of the Court.
12. In view of the circumstances above referred to, which
constitute, in the submission of the Government of the United
Kingdom, a clear acceptance by Albania of the jurisdiction of the
Court, the Government of the United Kingdom has not, in these
Observations, set forth arguments on the applicability of Article 25
of the Charter. However, the Government of the United Kingdom
must reserve the right, if necessary, to invoke the jurisdiction of
the Court on the grounds set forth in its original Application.
13. The Government of the United Kingdom feels obliged to
draw the attention of the Court to the circumstances in which the
preliminary objection was filed, which, in its submission, amounts
to an abuse of the process of the Court for the following reasons :-
In its preliminary objection the Albanian Government, ~hile
reaffirming its fullacceptance of the recommendation of the Security
Council, now, in effect, contends that in the existing circumstances
the jurisdiction of the Court has not been established, because a
special agreement shouid have been concluded, and, in consequence,
that the Order of the 31st July, 1947, ought not to have been made.24 BRITISH OBSERVATIONS AND SCTBMISSIONS (191 48)
The Government of the United Kingdom must first comment that
if this is, in fact, the position and a special agreement is necessary
to found the Court's jurisdiction, this fact was apparent on the
~2nd May, 1947,the date on which the Application of the Govern-
ment of the United Kingdom reached the Government of Albania,
or, if not then, at least on the pst July, 1947,thedate of the above
Order. Nevertheless, the Government of Albania first wrote a
letter of 2nd July which conveyed to the President of the Court
that it waived any question of a special agreement, and, secondly,
acquiesced in an Order by the President fixing, after consultation
with the parties, the respective dates for the delivery of Memorial
and Counter-Memorial, and allowed the Government of the United
Kingdom, in compliance with the Order, to deliver a Memorial
on the merits, and,finally,only on the last day fixedfor the delivery
of its Counter-Memorial, communicated a preliminary objection
containing no ground which had not been already referred to in
its letter of the 2nd July, 1947, and apparently waived by that
letter. This preliminary objection, apparen tly, withdraws its
acceptance of the jurisdiction of the Court contained in such letter.
Such conduct is, in the submission of the Government of the United
Kingdom, an abuse of the process of the Court.
The Government of the United Kingdom therefore submits
to the Court :-
(a) that the preliminary objection submitted by the Government
of Albania should be dismissed,
(b) that the Government of Albania should be directed to comply
with the terms of the President's Order of 31st July, 1947,
and to deliver a Counter-Memorial on the merits of the
dispute without further delay .
Dated this 19th day
of January, 1948.
(Signed) W. E. BECKETT,
Agent for the Government of the
United Kingdom. ANNEX
LETTER FR011 THE DEPUTY-?UII'LISTEK FOR FOREIGN
A\I:F.\IRS OF THE PEOPLE'S REPUBLIC OF XLBAXIX
TO THE REGISTR.4R OF THE COURT
(T~a~zslation.)
X.L.1.38j131.
Sir, Tirana, 2nd July, 1947.
1 have the honour to confirm the receipt of the Application addressed
by the Government of the United Kingdom to the International Court
of Justice against the Government of the People's Republic of Albania
regarding the incidents in the Strait of Corfu, of which Application
you were good enough to inform me by your telegram of ~2nd May last.
Having regard to the contents of the -4pplication, the Government
of the People's Republic of Albania desires to present to you the
following statement and would request you to be good enough to
bring it to the knowledge of the Court :
The Government of the People's Republic of =\lbania finds itself
obliged to observe :
I. That the Government of the United Kingdom, in instituting
proceedings before the Court, has not complied with the recommend-
ation adopted by the Security Council on 9th ;\pril, 1947, whereby
Governments should immediately refer the dispute to the International
Court of Justice in accordance with the provisions of the Statute of
the Court".
The Albanian Government considers that, according both to the
Court's Statute and to general international law, in the absence of
an acceptance by Albania of Article 36 of the Court's Statute or of
any other instrument of international law whereby the Albanian
Government might have accepted the compulsory jurisdiction of the
Court, the Government of the United Kingdom was not entitled to
refer this dispute to the Court by unilateral application.
2. It would appear that the Government of the United Kingdom
endeavours to justify this proceeding by invoking Article 2j of the
Charter of the United Nations.
There can, however, be no doubt that Article 2j of the Charter
relates solely to decisions of the Security Council taken on the basis
to recommendations made by the Council with reference to the pacific
settlement of disputes, since such recommendations are not binding
and consequently cannot afford an indirect basis for the compulsory
lurisdiction of the Court, a jurisdiction which can only ensue from
explicit declarations made by States parties to the Statute of the
Court, in accordance with Article 36, 3, of the Statute.26 ANNEX TO BRITISH OBSERVATIO?iS AND SUBMISSIONS
3. The Albanian Government considers that, according to the terms
of the Security Council's recommendation of 9th April, 1947, the
Government of the United Kingdom, before bringing the case before
the International Court of Justice, should have reached an under-
standing with the Albanian Government regarding the conditions
under which the two Parties, proceeding in conformity with the
Council's recommendation, should submit their dispute to the Court.
The Albanian Government is therefore justified in its conclusion
that the Government of the United Kingdom has not proceeded in
conformity with the Councii's recornmendation, with the Statute of
thIn these circumstances, the Albanian Governrnent would be within
its rights in holding that the Government of the United Kingdom
was not entitled to bring the case before the Court by nniiateral
application, without first concluding a special agreement with the
Albanian Government.
4. The Albanian Government, for its part, fully accepts the recom-
mendation of the Security Councii.
Profoundly convinced of the justice of its case, resolved to neglect
no opportunity of giving evidence of its devotion to the principles
of friendly collaboration between nations and of the pacific settlement
of disputes, it is pre ared, notwithstanding this irregularity in the
action taken by the c ivernment of the Cnited Kingdom, to appear
beNevertheless, the Albanian Government makes the most explicit
reservations respecting the manner in which the Government of the
United Kingdom has brought the case before the Court in application
of the Council's recommendation and more especially respecting the
interpretation which that Government has sought to place on Articlzj
of the Charter with reference to the binding character of the Security
Council's recommendations. The Albanian Government uishes to
emphasize that its acceptance of the Court's jurisdiction for this case
cannot constitute a precedent for the future.
Accordingly, the Government of the People's Republic of Albania
has the honour to inform y-outhat it appoints as its Agentin accord-
ance with Article 3j,paragraph 3, of the Rules of Court, M. Kahreman
Ylli, PvIinisterPlenipotentiary of Albania in Paris, whose address for
service at the seat of the Court is the Legation of the Federal People's
Republic of Yugoslavia at The Hague.
(Signed) HYSSIKAPO,
Deputy-Minister for Foreign
Affairs of Albania.
Observations and Submissions submitted by the Government of the United Kingdom of Great Britain and Northern Ireland