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Australian Journal of Legal History |
LAURENCE W MAHER[*]
The Court can only regard the alleged right of intervention [of the United Kingdom] as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization find a place in international law. Intervention is perhaps still less admissible in the particular form it would take here: for, from the nature of things, it would be reserved for the most powerful States, and might easily lead to perverting the administration of international justice itself. [1]
On 15 May 1946, Albanian shore batteries fired without warning on two British cruisers, HMS Orion and HMS Superb, as they passed southward through Albanian territorial waters in the North Corfu Strait. The two British warships, which were in a channel swept through a former German minefield in October 1944, were not damaged and had held their fire during the Albanian attack. The British Government immediately protested to the Albanian Government, but a major dispute developed and deteriorated sharply in late October 1946 when two other British warships were mined in the North Corfu Strait with heavy loss of life.
This long-forgotten episode in the early days of the Cold War prompted active Australian participation in the consideration by the Security Council of the United Nations (UN) of the ensuing controversy, the institution by the United Kingdom of the first proceeding in the International Court of Justice (ICJ) which had been established by the UN Charter, and an approach by the Australian Deputy Prime Minister, Minister for External Affairs, and Attorney-General, Herbert Vere Evatt, KC,[1] to the UK Government offering to appear as counsel for the UK in its pending ICJ case. Although it came to nothing, Evatt’s unsolicited and embarrassing offer to assist the UK in seeking justice in the Corfu Channel case was the subject of anxious consideration by the Foreign Office, the Dominions Office, and British ministers. The offer to appear as counsel was entirely in keeping with the very distinctive Evatt persona, with his fierce determination to affect the course of world events decisively in the immediate and turbulent aftermath of the bloodbath that was the Second World War, and with Evatt’s unwavering commitment to the just and peaceful settlement of international disputes.
Throughout the Corfu Channel dispute, Evatt sought to further the cause of justice under international law as a permanent institutionalised alternative to the use of force in international disputes. The UN, including its independent judicial organ, the ICJ, was to be the institution. Evatt had been instrumental in the establishment of the UN and a commitment to making the UN work effectively was to be a cornerstone of Australian foreign policy in the immediate postwar years. Evatt’s approach to the UK Government concerning the Corfu Channel case was characteristic of his general attitude to the discharge of his responsibilities as Minister for External Affairs. A dominant feature of Evatt’s approach to international dispute resolution was his insistence on, first, the equal application of fixed substantive legal rules and standards, and, secondly, on compliance with procedural fairness which Australian courts and tribunals routinely applied under the rubric, natural justice. This article offers an account of an episode in which Evatt the lawyer was at the forefront of his conduct of Australian foreign policy.
At the cessation of hostilities in Europe in May 1945, only a very small percentage of the hundreds of thousands of mines laid in the Mediterranean and in the seas of north west Europe had been swept. In the case of the Corfu Channel, the existence of a safe route had been announced by the Allied Command in November 1944 and in January and February 1945 the channel had been check-swept by the Royal Navy with negative results.
By an agreement made in November 1945 between the USSR, the USA, the UK, and France, the formidable task of removing the remaining mines in a co-ordinated way was committed to the International Central Mine Clearance Board. A Mediterranean Zone Board with representatives from the region as well as the four powers' representatives was assigned the task of clearing the Mediterranean Zone. In keeping with its stated objectives, the main Board promulgated detailed information about mines and mine clearance to world shipping interests and all the Mediterranean Zone countries including Albania. The information included maps showing the areas of Albanian territorial waters which had already been swept by British mine-sweepers.
Until May 1946, shipping of all kinds regularly used the North Corfu Channel without hindrance from either of the two territorial powers concerned – Albania and Greece. No objection had been raised by Albania or any other country to the active presence of British mine-sweepers in late 1944 and early 1945 in the North Corfu Channel, Valona Bay, and the Durazzo Approaches. It was true that Albania had not been invited to send observers to the Zone Board, but this was only because she possessed no mine-sweeping forces.[2]
The principality of Albania had been carved out of the remnant Ottoman Empire at the instigation of Austria and Italy at the London Conference of Ambassadors in December 1912 following the First Balkan War. Albania was not then ready for nationhood and by the late 1920s it had become a kind of protectorate under the regime of the Italian dictator, Benito Mussolini. On 7 April 1939, Italy invaded and occupied Albania. The supremely egotistical and opportunistic Mussolini plunged Italy into the Second World War on the AXIS side on 10 June 1940. On 26 October 1940, an Italian invasion force crossed the frontier between Albania and Greece. To Mussolini’s surprise and Hitler’s dismay, a much smaller and much less well-equipped Greek army drove the Italian invaders back into Albania. On 6 April 1941, a huge German army invaded Greece from Bulgaria and Yugoslavia. By the end of May 1941, Germany and its AXIS allies, Italy and Bulgaria, had conquered and occupied Greece including Crete. Italy sued for peace in 1943. In November 1944, a communist regime seized power in Albania and it soon became one of the most rigid members of the Soviet bloc (and, following the Sino-Soviet split in the 1960s, the Beijing camp).
Britain had recognised the new Albanian regime in November 1945, but diplomatic relations between the two nations were fraught.[3] Greco-Albanian relations had been strained since the creation of Albania in part because of Greek complaints about the treatment of Greeks in, and Greece’s territorial claim to, that part of southern Albania which to the Greeks was Northern Epirus.[4] The installation of a communist government in Albania was to make matters worse when, after the end of the AXIS occupation of Greece in November 1944, Greece took a sharp swing to the repressive right and descended into the so-called ‘third round’ of civil war in late 1946. Moreover, Greece had renewed its territorial claim over Northern Epirus (unsuccessfully, as matters turned out) in the negotiations leading to the treaties that dealt with the consequences of the Second World War.[5]
The mariners who had been using the reopened Corfu Channel after the end of the Second World War in May 1945 relied generally on the rule of international law (or, if not an accepted rule of law, then at least a rule of usage of long standing) which recognised that in peace and war there is for both warships and merchant vessels a right of innocent passage through straits forming highways of international maritime traffic. However, the British Government entertained a doubt as to whether the right of innocent passage carried with it a right to carry out mine sweeping operations within territorial waters without the agreement of the territorial power.[6]
In earlier times, the unprovoked attack on the Orion and the Superb would have been met, predictably and legitimately, by proportionate retaliatory force. However, the British Government decided not to resort to the traditional response and, instead, denounced the attack as a deliberate and outrageous breach of international law and maritime custom, and demanded an immediate and public apology and an assurance that the persons responsible would be punished.[7] The Albanian Government's reply made false claims about the behaviour of the two British warships, assumed that foreign warships had no right to pass through an international strait part of which was included in territorial waters, and added that the ships would not have been fired upon if they had been recognised as British ships. Further notes were exchanged by the two governments between May and August 1946. Albania asserted that foreign warships had no right of passage through her territorial waters without her authorization. In a note delivered on 2 August 1946, the British Government stated that it did not recognise any right on the part of a territorial power to demand the fulfilment of conditions before entry was permitted into a recognised international channel. Britain could not therefore agree to give prior notification of passage through the Corfu Channel and warned that if in the future British ships were fired on in the channel, fire would be returned.
On 22 October 1946, a Royal Navy squadron comprising the cruisers, HMS Mauritius and HMS Leander, and two destroyers, HMS Saumarez and HMS Volage, was sent northward through the strait from Corfu expressly in order to test the Albanian attitude, that is to say, to see whether the ships would be allowed to pass without interference.[8] The crews were at action stations with express instructions to return fire if attacked, but the ships’ guns were in their normal position trained fore and aft and were not loaded. During the trial passage, the British ships were proceeding slowly within the swept portion of the strait close to the Albanian coast. Mauritius was leading, closely followed by Saumarez. About two miles astern on the same course was Leander, closely followed by Volage. Outside the Bay of Saranda, Saumarez struck a mine and was heavily damaged. Volage was ordered to give her assistance and take her in tow. Whilst towing the damaged ship, Volage struck a mine and was also heavily damaged. Despite the fact that his vessel’s bows were blown off and high cross winds meant that there was a danger that both vessels would be wrecked, the commander of the Volage was able to make Corfu with the crippled Saumarez still in tow after twelve hours of hard endeavour.[9] The explosions killed 44 officers and men. Another 42 sailors were injured. On this occasion, the Albanian shore batteries did not open fire, but an Albanian Navy vessel appeared in the vicinity flying the Albanian ensign and a white flag.[10]
On 26 October, the British Government informed the Albanian Government that, in view of the serious accidents to the British warships, the Corfu Channel would shortly be swept. Three days later, Albania protested to the Secretary General of the United Nations, Trygve Lie of Norway,[11] against what it called the violation of its territorial waters and provocative incursions by British warships. On 31 October, the Albanian Government also replied directly to the British protest note of 27 October by protesting against the entry of British warships into Albanian territorial waters and stating that there was no objection to minesweeping provided territorial waters were not entered either inside or outside the strait. This attitude was entirely unacceptable to Britain because of the fact that part of the channel was located wholly within Albanian territorial waters. So far as London was concerned, the Albanian position as set out in its note could only be construed as meaning that Albania was refusing to agree that the Corfu Channel should be rendered safe for navigation. More provocatively, the Albanian note also stated that the Albanian Government could take no responsibility for the consequences if the minesweeping took place and would regard it as a violation of Albanian sovereignty. This was treated by the British Government as an attempt to obstruct the clearance of a serious menace to international navigation.
On 10 November, the British Government informed the Albanian Government that the channel would be swept two days later and that the proposed minesweeping operation had been unanimously approved by the Central Mine Clearance Board on 1 November 1946. This approval had been granted at the request of the UK, but was expressly subject to Albania consenting to the foreshadowed operation. The British note defined the exact area to be swept, stated that none of the British ships would be stationed in Albanian territorial waters, and that the operation would be carried out in the same way as the original sweeping in 1944 and 1945 to which the Albanian Government had raised no objection. On the eve of the sweeping operation, the Albanian Government addressed a further note to the British Government stating that while the Albanian Government did not in principle object to the Royal Navy undertaking the sweeping of the channel, it proposed a mixed commission should be established by the UN to determine the area involved. The British Government’s attitude to that Albanian proposal was that it was disingenuous and a delaying tactic since the swept channel had existed for two years and all the information published about it had already been supplied to Albania. The Albanians also sent a second complaint to UN Secretary General Lie protesting in strong terms against the British Government's action in presenting Albania with a fait accompli. The Albanians went so far as to deny the existence of the Central Mine Clearance Board in spite of the fact that a request that Albania should be represented on it had been put forward by the Yugoslav Government doubtless with the knowledge of the Albanian Government.[12] Albania made it clear that any sweeping undertaken without its consent inside Albanian territorial waters where foreign warships had no reason to sail could only be considered a deliberate violation of Albanian territory and sovereignty.
The minesweeping operation was carried out on 12 and 13 November 1946 under the direction of the Allied Commander-in-Chief Mediterranean. At the invitation of the Mediterranean Zone Board, a French naval officer was in attendance as an observer. The minesweeping occurred within Albanian territorial waters and within the limits of the previously swept channel. And it occurred under the cover of an aircraft carrier, cruisers and other warships. Twenty-two moored contact mines were detected and cut. The mines were found to be in a position which left no doubt that they had been deliberately laid as a minefield and were not isolated floating mines.[13] The minefield extended for three miles along the channel. Two of the mines were taken to Malta for expert examination. This revealed that the mines (each containing 600 pounds of explosive) were of German manufacture, that they were free from rust and marine growth, that they had been recently painted, and that they still had grease on their mooring cables.[14] The expert conclusions were that there was no doubt whatever that the mines were laid only a very short time before the date on which the Saumarez and Volage suffered damage and casualties. Mine fragments recovered from the Volage confirmed the origin of the mines.
In the six months since the attack on the Orion and Superb, the Albanian authorities had maintained a close watch on all ships using the North Corfu Channel. From the British standpoint, it was certain that no mine field could have been laid in the channel within a few hundred yards of the Albanian shore batteries without the connivance, or at least the knowledge, of the Albanian authorities.[15]
The UK accepted that it had acted without the Albanian consent which was a condition of the Central Mine Clearance Board approval and that the minesweeping operation was not done in the exercise of the right of innocent or ordinary passage. Moreover, the UK accepted that, in principle, international law did not allow a State to assemble a large number of warships in the territorial waters of another State and to carry out minesweeping in those waters. However, the UK position was that it was responding to a situation of extreme urgency and that it was entitled to carry out the minesweeping without anybody’s consent. More specifically, it claimed a lawful entitlement to effect the minesweeping operation (a) under the four-power mine clearing agreement of 22 November 1945, and (b) in the exercise of the right of a potential claimant for compensation to secure the corpora delicti as soon as possible for fear they should be taken away without leaving any traces.[16]
On 9 December 1946, the British Government sent a very detailed note to the Albanian Government narrating the relevant events that had occurred since late 1944.[17] The note demanded an apology for the unprovoked attacks of 15 May 1946 and 22 October 1946, an assurance that there would be no repetition of the Albanians' unlawful action, and reparation for the deaths, injuries, and damage caused by those attacks. The Albanians were informed that if no satisfactory reply was received within 14 days, the matter would be brought before the UN Security Council.
In its response received on 21 December, Albania expressed regret for the incident which occurred on 21 October, but denied responsibility for the laying of mines. The Albanians said that the mine laying must have been the work of those who did not wish to see friendly relations re-established between the United Kingdom and Albania. The Albanian Government insinuatingly drew attention to the fact that Greek and other foreign vessels had several times entered southern territorial waters of Albania despite Albanian protests.
The United Kingdom, one of the five permanent members of the Security Council, viewed the Albanian stance as totally unsatisfactory and, on 13 January 1947, as foreshadowed, referred the incident to the Security Council under art 35 of the UN Charter. Article 35(1), which forms part of Chapter VI of the Charter, ‘Pacific Settlement of Disputes’, provides that ‘Any member of the United Nations may bring any dispute, or any situation of the nature referred to in article 34, to the attention of the Security Council or the General Assembly’. Article 34 authorises the Security Council to:
investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.
The UK characterised the complaint against the Albanian Government as
a serious threat to, and breach of, international peace and security, showing criminal disregard of the safety of innocent seamen of any nationality lawfully using an international highway.[18]
Australia, one of the founding members of the UN, had been elected to one of the non-permanent seats on the Security Council in 1946 for a two-year term.[19] The principal Australian representatives in the Australian Mission to the UN were Paul Hasluck[20] and Lieutenant-Colonel William R Hodgson.[21]
At Evatt’s direction, the Australian delegation to the UN was instructed on 16 January 1947 to press for the fullest documentation of the facts by both parties to the Corfu Channel dispute together with a statement from the Central Mine Clearance Board. Evatt wanted all the documents produced to be referred to a Security Council sub-committee for a report on the position revealed by the evidence both as regards the facts and the legal (liability) position. The case did not, in Evatt’s estimate, require a view of the scene of the accident by a commission of investigation. If the UK established an unequivocal case to the satisfaction of the Security Council, every effort was to be made by the Australian delegation, in the interests of the prestige of the UN, to see that effective action was taken under the UN Charter.[22]
On 18 February 1947, the UK Ambassador to the UN, Sir Alexander Cadogan,[23] presented the UK case against Albania to the Security Council.[24] According to Cadogan, the detailed direct evidence which he laid out showed that the mine field had been deliberately, recently and secretly laid contrary to arts 2-5 of the Hague Convention No 8 of 1907 which forbade the laying of un-notified minefields,[25] and that, in any event, what had occurred was a crime against humanity. It was, said Cadogan, pure chance that warships were the victims of the mine laying and an accident might equally well have happened to merchant shipping. There was also indirect evidence of Albanian responsibility, namely, the fact that Albania made extreme claims to exercise control over the passage of shipping, and, secondly, various instances showing that all passing traffic even at night was under closest scrutiny and had even been subjected to gunfire.[26]
Cadogan indicated that the UK was proposing that the Security Council should resolve that an un-notified mine field had been laid in the Corfu Strait by the Albanian Government or with its connivance resulting in serious injury to British ships and loss of life and injury to the crews, and, secondly, that the UK and Albania should settle the dispute between them on the basis of such a Security Council finding and in the event of failure to settle either party might apply to the Security Council for further consideration of the dispute. The Albanian representative replied at length on 19 February.[27]
On 19 February, the Australian delegation was instructed that Evatt was ‘entirely sympathetic to the UK reaction [as voiced by Cadogan] and [that Evatt had] little doubt that a judicial investigation of the facts would support [a] finding’ that an un-notified minefield was laid in the Corfu Channel by the Albanian Government or with its connivance (italics supplied).
1 ... The issue is so important that, before such a finding is made it is as minimum essential that a sub-committee be appointed to enquire into the facts and to report to Security Council, or alternatively Security Council should itself decide facts on all the evidence. Of course, if Albania had admitted truth of facts (which however they deny ...) investigation would be unnecessary: otherwise it is an essential preliminary to Security Council action.
2 You should tell Cadogan and US representatives immediately of our general views, and, at not too early a stage and if timely, propose before Council, making it quite clear proposal is made because we regard charges as amounting in substance to mass murder and that if facts are substantiated exemplary punishment should be meted out to those responsible.
3 If Sub Committee plan is unacceptable, judicial arbitration would be satisfactory and in some respects preferable. (italics supplied)[28]
On 24 February, Hasluck moved in the Security Council to set up a sub-committee of inquiry.[29] Because of the conflicting testimony about the origin of the minefield, it was doubtful whether the Council in full session could expeditiously determine the facts and it was therefore necessary to establish the sub-committee to enable the Council without fuss, without acrimony and by orderly procedure to arrive at an early decision. The Soviet Union opposed the Australian proposal outright and declared that the UK had made baseless and unjust accusations, that art 35 did not cover such a case, and that the UK had not complied with the Charter.[30]
On 27 February, with the Soviet Union, Poland and Syria abstaining, the Security Council adopted the Australian proposal by eight votes and set 10 March 1947 as the date for the sub-committee to report. Australia, Columbia (whose representative acted as sub-committee chairman), and (at the Soviet Union’s insistence) Poland were appointed to the sub-committee on the nomination of Syria. Cadogan did not participate in the vote on the composition of the sub-committee because Albania did not have a vote.[31]
On 11 March, the Australian UN delegation reported to Canberra on the latest meetings of the sub-committee. The delegation advised that prospects were that it could obtain a report endorsed by Columbia and Australia if not by Poland isolating for the Council's decision the three main British allegations namely, that damage occurred, that it was caused by an undeclared minefield, and that the minefield was either laid by Albania or with Albanian connivance and analysing the evidence on each point thus concentrating the Council’s attention on the essentials and avoiding side issues raised by the Soviet Union. The final paragraph of the cable was as follows:
3 We have been closely in touch with the United Kingdom Delegation throughout and such a report leaving way open for submission of their resolution would be acceptable to them. Probable outcome is that Soviet will veto United Kingdom resolution and proposal will then be made probably by Columbia to refer whole case to Court. Poland which originally favoured reference to Court in private discussion of case now urges that only way is to tell parties to negotiate under Article 33.[32]
For Evatt the Security Council’s fact-finding responsibilities necessarily called for quasi-judicial compliance with the then prevailing British domestic requirements of natural justice.[33] Procedure was not a matter of mere ritualistic adherence to form. It was inextricably part of the substance of a civilised system of justice. Moreover, nothing should be done which would detract from the appearance of justice. But the delegation had not been given detailed instructions as to how it was to go about its task on the sub-committee. This is hardly surprising. The task had been left in their hands. Moreover, they had been told, in effect, to liaise with Cadogan. But in a message sent on 18 March and which had probably been drafted or settled by Evatt, the delegation was given the following strict instruction as to how it was to conduct itself:
It is difficult to understand your para 3. A most important feature of the Australian policy of fact-finding committees is their complete objectivity and impartiality. It would therefore be unwise to maintain contact during an investigation with one of the parties to the dispute not represented on the committee. Such action might easily lead to great embarrassment and call into question the good faith of our work on the Security Council.[34]
This stricture would, arguably, have been entirely appropriate in the context of domestic judicial or quasi-judicial decision-making. But could it have any sensible application in the context of the operations of the newly created international instrumentality charged under art 24(1) of the UN Charter with ‘primary responsibility for the maintenance of international peace and security’ and having five permanent members? Given that unique context, could the Security Council, as Evatt argued in the House of Representatives on 8 November 1946, exercise a quasi-judicial authority with all that conveyed for Australian lawyers?[35]
In a report received in Canberra on 19 March, the delegation provided a summary of the Security Council sub-committee’s report:[36]
• no opinion was given on the accuracy of the Albanian allegations;
• there was no conflicting evidence for the British claim that damage and loss of life had been suffered by the British ships;
• no agreement could be reached whether the minefield which was located in the minesweeping operation conducted on 13 November 1946 existed on 22 October 1946;
• the sub-committee had submitted that the first question for the Security Council to face was whether or not, having regard to the nature and extent of the available evidence, the Council felt it was able to pronounce on the question whether or not the minefield which was located in the minesweeping operation conducted on 13 November 1946 existed on 22 October 1946, and whether or not this minefield was laid by the Albanians or with the connivance of the Albanian Government.
An officer in the Department of External Affairs - perhaps the head of the UN Division, K C O Shann – wrote on the cable opposite this last paragraph the acerbic yet arguably justified comment: ‘This was what the C’te was to find out.’[37]
It seems clear enough that, in keeping in touch with the UK delegation, Hasluck and his colleagues had done what Evatt had expressly or impliedly instructed them to do. It is little wonder then that the delegation resented being reproved by Evatt for engaging in what the hyper-sensitive Minister adjudged were impermissible informal dealings with one of the parties to the dispute. In this respect, Evatt the lawyer was altogether ignoring the unique context of Security Council decision-making. In its report of 19 March the delegation defended itself in the following terms:
We assure you that Australian participation in the work of the committee has been objective and impartial throughout. The Polish participation in the work of this committee was, perhaps, the dirtiest and most unscrupulous display we have yet encountered in the United Nations, assiduous attempts being made to change the character of the committee’s work, to distort the evidence, to transform our work into a partisan demonstration against United Kingdom and to confuse the case by introducing various side issues. In resisting this we were single handed as the Columbian President was disappointingly silent until the final meeting when he eventually supported us in insisting on impartial report and exclusion of the Polish conclusions. Our line throughout was to maintain the character of the committee as discharging functions comparable with those of the League of Nations Rapporteur, namely an examination and analysis of the case and a clear presentation of the points at issue. While the report is not as good as we should have liked, it is the best we could obtain, inasmuch as Columbian hesitated to join us in a majority report and it has the negative virtue of not containing any improper material. Our reference in paragraph 3 of [cable no] Security 299 was intended to inform you that, in accordance with our instructions, we had kept in touch with United Kingdom delegation informing them of proceedings of committee. We did not take sides during the committee’s work.[38]
The same person in the Department of External Affairs noted against the delegation’s explanation of its dealings with the UK delegation that ‘This should not have been done’ and ‘not after the C’tee started’ and, against the delegation’s protestation of not taking sides the rather baffling observation, ‘By the look of the evidence this should have been done’.[39]
There is a glimpse of Hasluck’s frustration in the dedication to his very detailed book analysing the operations of the Security Council, Workshop of Security (1948) which was published after Hasluck had left the Department of External Affairs. Hasluck dedicated the book to ‘Those with Whom I have Argued’ and stated that in his friendly association in argument with men and women in United Nations circles ‘my faith in argument has been reinforced and I want the argument to spread and keep on spreading’. Evatt and Hasluck shared the strong opinion that the Security Council rested on principle, not power. But the two men were otherwise at odds temperamentally and intellectually. Evatt gets only passing mention in Hasluck’s book and there is every reason to believe that Hasluck saw little in Evatt’s characteristically quirky control of Australia’s participation in the Security Council’s treatment of the Corfu Channel incident that advanced the cause of argument in the sense in which Hasluck embraced it.[40]
There can be little doubt that Evatt was unhappy with what the sub-committee had produced and with how the Australian representative(s) had behaved, and that he was determined to administer further chastisement. In a ‘MOST IMMEDIATE’ cable settled by Evatt and sent to the UN delegation on 20 March, the delegation was informed that the ‘situation as reported by you seems very unsatisfactory’. The circumstantial evidence appeared to justify a finding that the mines were laid with Albanian connivance, but the sub-committee had made no recommendation on this point. It had apparently lost control of its procedure due to the action of the Polish representative and the committee secretariat. British lives had been lost and, although the UK action might have been over hasty and even ill-advised, the delegation was to do nothing which could be regarded as embarrassing to the UK. The delegation was to fall in behind whatever approach the UK took in the Security Council. If the UK wanted the matter referred to the ICJ, the delegation was to support such a proposal strongly. If the UK was firmly against referral to the court, Australia was not to support a reference unless a clear majority was in favour. The delegation was to act in close consultation with Cadogan and to take a suitable opportunity of criticising any unwarranted interference by the secretariat and the introduction by any country of irrelevant propaganda. The enquiry ‘had been unsatisfactory and it was regrettable that, even if [the] Australian delegate could not get support from Columbia, he did not take a strong line in a minority report’.[41]
On 21 March, the delegation sent a detailed report to Canberra on the resumed Security Council debate the previous day. Apparently still stung by Evatt’s assertion that the delegation had somehow behaved improperly or unwisely, Hasluck reminded Canberra that the delegation’s strongest line during the Committee's work was to maintain complete objectivity and impartiality of the Committee even though that meant limiting the scope of the Committee’s report. In Canberra – probably Shann, again – sarcastically wrote in the margin, ‘by consulting the UK no doubt!’ [42]
The Security Council debate continued on 21 and 25 March. On the latter date, after three months of elaborate investigation and extensive debate, the Soviet Union vetoed the proposed Security Council resolution condemning Albania.[43] Poland had been promoting an alternative resolution which was overtaken by the UK’s resolution that the dispute be referred to the ICJ.[44] Debate resumed on 3 April 1947 (by which time Hodgson had replaced Hasluck) and continued six days later.
Echoing Evatt’s statement in the Parliament five months before and couched very much in the language of lawyers, Australia’s position was that the Security Council was acting in a quasi-judicial role and had to reach a decision as reasonable men on the basis of all the available evidence (author’s emphasis). Since, on that basis, the Security Council had actually found against Albania the matter could not be ignored (although nullified by the Soviet veto) because the case was of concern beyond the UK and the USSR as a crime against humanity. The Soviet delegate, Andrei Gromyko, assailed Hodgson for what he labelled his ‘veto phobia disease’.[45]
Then, on 9 April 1947, with the Soviets and Poland abstaining, the Security Council, by eight votes to nil, recommended under art 36(3) that the dispute should be submitted to the ICJ.[46] The United Kingdom filed its application in the ICJ on 13 May 1947 accusing Albania of having laid or allowed a third State to lay the mines after mine-clearing operations had been carried out by the Allied naval authorities.[47]
It is scarcely surprising that Evatt and the Australian Government had exhibited a close interest in the ICJ since it was a critical feature of the new international arrangements which Evatt had helped create. Moreover, in 1946, the then Solicitor General of the Commonwealth, Kenneth Hamilton Bailey,[48] had been an unsuccessful candidate for election to the new court.
Writing in 1948, Hasluck offered the view that, in a general way, the Security Council’s handling of the Corfu Channel incident had achieved the first of the purposes of the UN:
To maintain international peace and security and to that end ... to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.
But violence had been done to the second purpose:
To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples and to take other appropriate measures to strengthen universal peace.[49]
Evatt had become Minister for External Affairs on 7 October 1941 when the leader of the Parliamentary Labor Party, John Curtin, formed his first wartime government. From the beginning of his tenure as Minister for External Affairs, Evatt changed the course and tone of Australian diplomacy.[50] Evatt’s tenacious pursuit of Australian foreign policy was manifested in Australia's role in the formulation of the UN Charter at San Francisco in April-June 1945.[51] His most recent biographers have observed that Evatt achieved international fame for his work on the UN and that it can fairly be said that he was one of the new organization’s architects.[52]
Evatt was a very demanding and difficult individual. He had a formidable intellect which in his formative years produced stellar academic achievements. He was both an outstanding legal scholar and an outstanding practising lawyer. He has been described as ambitious, petulant, driven, querulous, and mistrustful; and as very jealous, unscrupulous, and frantically disordered and confused in his work methods; and as a bully, as lacking depth of knowledge of international affairs, occasionally childish, and suspicious of anyone over the age of four. And, there was much more. As a politician, he was erratic and ruthless, a pragmatist and an opportunist. Yet, simultaneously, throughout his career, he was a tireless fighter for freedom and justice, for the under-privileged, and generally for the orderly and rational advancement of the human condition. His career was surely at its peak in the 1940s. It was this that made his slow and pitiful decline in the mid-1950s such a tragedy.[53]
Evatt was not liked. He alienated people. But it needs to be said that in the immediate postwar context this only made an existing external situation worse. Even if Evatt had possessed an equable personality, the climate of emerging polarization of Cold War global politics was such that any small state or group of small states was forced to deal with the realities of big power bossiness and mutual hostility. It is little wonder then that Evatt excited particular hostility by the big powers. The US Ambassador in Canberra in early 1949, Myron M Cowen, was perhaps typical of the big power anti-Evatt school. Cowen, who had been in Canberra only a few months, felt able to report confidently to the State Department that Evatt was ‘a completely unscrupulous and untrustworthy egomaniac’.[54] Perhaps the most striking illustration of the extent of irritation and downright hostility caused by Evatt in the worsening early days of the Cold War was that, from time to time, he was simultaneously denounced by, and as agent or dupe of, the Soviet Union.[55]
International fame came to Evatt in part through his direct personal exertions at the San Francisco conference and in part by his active role in the early operations of the new organization. Evatt's efforts in the postwar geopolitical transformation covered all the major issues of the time including the Paris Peace Conference (1946), the struggle for Indonesian independence (1945-1949), and in the long process which preceded the signing of the Japanese Peace Treaty.[56] He was instrumental in Australia's election to the Security Council (1946-1948), the Economic and Social Council (1947), the ad hoc Special Committee on Palestine (UNSCOP) (1947), the Security Council Commission of Investigation Concerning Greek Frontier Incidents (1946-1947) and its successor the United Nations Special Committee on the Balkans (UNSCOB) (1947-1949), and the Temporary Commission on Korea (UNTCOK) (1947). Evatt was the inaugural chairman of the UN Atomic Energy Commission. Narrowly defeated in his bid for election as President of the UN General Assembly in 1947, his candidacy was successful the following year. He has been accused of being unprincipled in securing US support for his second candidacy by backing the US position on the partition of Palestine.[57]
The end of the Second World War had led seamlessly to the emergence of the Cold War. In late 1945 and early 1946, the allied combatants and their associates began to divide along an east-west axis. The Cold War was to be the dominating geopolitical condition of the post-war era until the collapse of the Soviet Union and the Soviet bloc in 1989-1991. A dramatic turning point occurred in the US Congress on 12 March 1947 when President Harry S Truman announced his administration’s legislative proposal for provision of $400 million for urgent US military and economic assistance to Greece and Turkey. The President said that a ‘fateful hour’ had arrived. Nations ‘must choose between alternate ways of life’. One way of life was based upon the will of the majority and was distinguished by free institutions. The second was based on the will of the minority forcibly imposed on the majority, and ‘If we falter in our leadership, we may endanger the peace of the world’. Under what immediately became known as the ‘Truman Doctrine’, the President told the assembled legislators that it would be the policy of the US ‘to support free peoples who are resisting attempted subjugation by armed minorities or by outside pressures’. Although the President did not refer to it by name, it was clear that the Soviet Union was the source of the danger – the other way of life. On 5 June 1947, in an address at Harvard University, the US Secretary of State, (General) George C Marshall, announced his eponymous plan for the reconstruction of western Europe in which enormous undertaking the Soviet Union was destined to play no part.[58]
In the realpolitik of the immediate postwar years, Australia’s power and influence in the international community were marginal. Evatt was, however, completely undeterred by what he perceived as the domineering exclusiveness and bullying of big-power politics. He thrust himself forward as a self-appointed leader of the smaller nations in the emerging post-colonial world. He was determined to remind the world of the unmatched extent of Australia’s recent ‘total’ war effort.[59] As pleaded by Evatt, Australia’s claim to a decisive role was self-evident. It derived from Australia’s status as a successful participant in the victory against the AXIS powers, from Australian pursuit of regional security arrangement with the United States of America, and from its status as a Pacific power. Evatt told the UN General Assembly on 18 September 1947 that it was meeting ‘at a period in world history which can be described as the half light between war and peace’.[60]
Evatt stressed that the spirit of the San Francisco Charter ‘above all, sought to substitute justice and morality for physical power as the determinant in international relationships’. The ‘Australian Government [regarded] support for the United Nations as a cardinal principle of its foreign policy’. Evatt was also affronted by ‘the frustration, futility, and positive injustice caused by applying an individual veto in cases where the majority of the [Security] Council is attempting to exercise conciliatory jurisdiction in a dispute between nations’.[61] In his brand of statecraft, it was Evatt the lawyer who was usually at the forefront of the action. Evatt had an abiding commitment to the basic constitutive elements of what was called (rather pretentiously) British justice. His unshakeable belief in the invincibility of rational and impartial decision-making as fundamental to the attainment of justice for nations no less than for individuals is to be seen in all his work.
Writing in 1956, Geoffrey Sawer said that Evatt ‘hoped for and believed in the UN’ whereas his conservative successors as Minister for External Affairs, P C Spender (1949-1951) and R G Casey (1951-1960), had only hoped for the UN.[62] Writing in 1984, Meredith Burgmann stressed Evatt’s ‘passion for juridical purity and thorough investigation’.[63]
Evatt repeatedly pressed the inter-related claims for –
• systematic and objective fact-finding based on proven evidence (allowing for inference, but excluding supposition) including, where appropriate, the utilisation of on-the-spot investigation – what the trial lawyers call a ‘view’;
• formal due process of the kind that lawyers in the Anglo-American-Australian tradition saw as a constitutive characteristic of courts and quasi-judicial agencies;
• the use of power (especially the Security Council veto) only for proper purposes. The Security Council was only to take military action to suppress aggression;
• the use of conciliation and mediation in preference to imposed adjudication and, especially, as an alternative to the imposition of the Security Council veto;
• the application of even-handedness and impartiality and judging every case on its individual merits free of extraneous and irrelevant considerations;
• the desirability in appropriate cases of last resort of referring questions to the ICJ for binding determination. There was to be maximum employment of the ICJ in determining the legal aspects of international disputes; and,
• As with the need to protect the dignity of the courts and administrative agencies in the domestic setting, it was of central importance to maintain public confidence in the integrity of the UN and its agencies; and, especially, the integrity and effectiveness of the Security Council.
Evatt displayed a natural tendency to see the UN in terms of the domestic Australian legal institutions with which he was familiar. So, for example,
• he contrasted the ‘mandatory’ jurisdiction of the Security Council with the ‘permissive’ jurisdiction of the General Assembly and he analysed the role Council in terms of ‘right’, ‘power’ and ‘duty’;[64]
• he had a tendency to make important functional distinctions that might not necessarily be so obvious or a matter of concern to non-lawyers. When the General Assembly established UNSCOB in November 1947, he adopted the view that the Committee members were ‘representative not so much of their Governments as of the General Assembly, the Committee being in a sense a trustee for the members of the United Nations not represented on it’[65] (italics supplied). And a body which was charged only with the task of fact-finding was not entitled to attempt to allocate blame or responsibility;
• he treated the UN Charter as if it were a legislative instrument amenable with necessary adaptations to the orthodox scheme of canons of interpretation of domestic Acts and Regulations;[66]
• he argued for the specification of rational principles and clear standards as the only basis for the exercise of the power to admit new members of the UN.[67]
Evatt had the lawyer’s keen eye for detail and form especially, as his work at San Francisco amply demonstrated, in the quest for meticulous drafting. Given his tendency to take control of situations, Evatt was especially prone to taking a close interest in the framing of instructions for Australian diplomats. Contrary to what many of his harshest critics said, this was not always because Evatt distrusted all his advisers. The quest for precision was an end in itself. His very distinctive handwriting, somewhat spidery and sometimes bordering on the illegible, can be seen in the drafts of many cables and other surviving archival documents. Even where drafts have not survived, there is in the final typescript versions the clear linguistic imprint of the lawyer with long experience in drawing pleadings and affidavits and preparing memoranda, and of the skilled barrister determined to set out a case – on both the facts and the law – persuasively and in logical sequence.
For non-lawyers, Evatt’s relentless pursuit of precision and a pronounced tendency to argue everything at length could no doubt be maddening on occasion. It was certainly the case that one recurrent complaint of Evatt’s critics was that he was excessively legalistic.[68] By way of illustration, Sawer detected in Australia’s technical procedural treatment of the Soviet-inspired complaint against Greece in 1946 the influence of Evatt’s training in the (then) exceptionally strict pleading system governing the conduct of civil litigation in New South Wales.[69] For example, his observation in the cable sent to the Australian UN delegation on 19 February 1947 – ‘Of course, if Albania had admitted truth of facts (which however they deny ...)’ – is reminiscent of the work of a pleader making a conditional allegation. For Evatt, the UN Charter, a document which he had been instrumental in creating, was to be accorded the utmost respect. If the world was to have any chance of living in peace, nation states had to conduct themselves according to the dictates of the Charter. If a determination to operate at all times according to the letter and spirit of the Charter and to avoid ‘exhibitions of abuse and counter abuse’[70] was to attract the facile label ‘excessive legalism’, then, so be it.
Moreover, the UN Charter was a constitution and to be effective there had to be a judicial organ to interpret and apply it just as the High Court of Australia interpreted and applied the Australian Constitution.[71] The old Permanent Court of International Justice set up under the League of Nations had not been a success. Neither the US nor the USSR had been a party to the PCIJ statute. The new ICJ would be different. So far as Evatt was concerned, the time had arrived when a broad step forward could be taken in the direction of enlarging the new World Court’s effective area of jurisdiction by restricting the power of reservation and by making acceptance of the automatic jurisdiction of the court in legal disputes a condition of membership of the UN. Moreover, an effective judicial authority would act as a brake on the vast executive authority of the Security Council.[72]
At the meeting of the UN General Assembly at Lake Success on Long Island, New York in November 1947, Evatt suggested to Hector McNeil,[73] the UK Minister of State for Foreign Affairs, that he would be willing to appear as counsel on behalf of the UK in its pending ICJ case against Albania.[74] McNeil passed Evatt’s suggestion on to the UK Attorney-General, Sir Hartley Shawcross, KC.[75]
At first, Shawcross described the Evatt démarche as ‘this remarkable proposal’. This was an understandable assessment. Evatt could be pushy and brusque; he was widely regarded as an unabashed publicity-seeker and ego-maniac. In terms of Foreign Office and Dominions Office refinement, he was a rough colonial type who wore ill-fitting clothes and spoke with a flat or monotonous Australian accent. For the Whitehall bureaucrats, it was really none of his business interfering in the conduct of another nation’s international affairs. Moreover, there was, perhaps, something unseemly in one of His Majesty’s counsel learned in the law appearing to tout for work (albeit work for which no fee would be marked).
Yet, given the unique Evatt persona, the offer of assistance was, in another sense, quite unremarkable. Evatt had commenced practice at the New South Bar in 1918. He was, as Geoffrey Bolton has so crisply observed, ‘prodigiously energetic’. He was thus no mere pointy head. He was an active sportsman (cricket, rugby league, hockey and baseball) and volunteered for service in the Great War only to be rejected because of astigmatism.[76] In the 1920s, the precocious Evatt soon made his mark as an ‘all rounder’ – as a trial lawyer presenting the facts, and as an appellate advocate mastering the intricacies of legal argument. All the time Evatt was working towards making his mark in the Australian Labor Party. In 1930, at the age of 36, he was appointed to the High Court of Australia. It was an appointment that was highly controversial inside and outside the Labor Party. His ten years on the Court had been years of high cumulative achievement both as a judge and as a public intellectual. Evatt’s return to the bear pit of advocacy as First Law Officer of the Commonwealth in the late 1940s was but one remarkable aspect of a unique public career. In 1948/1949, Evatt would lead for the Commonwealth in the Bank Nationalisation case for the 39 days that the case took to be heard by the High Court,[77] and a record (if not breathtaking) 36 days between 14 May and 1 June 1949 before the Judicial Committee of the Privy Council.[78]
In the High Court, Evatt was back at the bar table appearing before a bench made up almost entirely of his judicial brethren from the 1930s. That fact alone would have deterred most advocates who had left the bench to resume practising law – but that in itself was highly unusual, and frowned upon professionally. He somehow managed the Privy Council appeal in the Bank Nationalisation case when he was President of the UN General Assembly. It was a tense time. The Cold War had entered a very threatening phase. The Berlin blockade and airlift were under way. The East-West polarisation seemed to be moving inexorably towards armed confrontation. Evatt would bring all these strands together in what is the leading contender for the greatest tour de force of twentieth century Australian advocacy – his twin triumphs in the Communist Party Dissolution Act case (1950-1951) and the defeat of the Referendum on the Constitution Alteration (Powers to Deal with Communists and Communism) 1951.
There is every reason to believe that Evatt had in mind for many months the possibility of appearing in the pending Corfu Channel case. Apart from his general commitment to securing an effective role for the ICJ in the postwar international order, Evatt had followed the Security Council consideration of the Corfu Channel dispute closely and had been disappointed (if not annoyed or angered) by the Council's failure to resolve the dispute in a spirit of quasi-judicial impartiality that he considered was mandated by the UN Charter. Evatt had become more dissatisfied with what he saw as the big power misuse of the UN. The partisan politicking and the ever-present threat of the permanent members’ use of the Security Council veto was for Evatt manifestly contrary to the proper exercise of the Security Council’s functions. In his Oliver Wendell Holmes Lectures at Harvard in late October 1947, Evatt had extolled the role of the ICJ and complained that the court had been denied almost totally the opportunity of working.[79]
By late 1947, the UK’s case in the ICJ was at an advanced stage. Six months had passed since it had been filed. Albania had raised a preliminary objection to jurisdiction. Evatt was nothing if not an opportunist and even by late 1947 or early 1948 it was not too late for him to become involved in the case in a leading role. His approach to McNeil can be understood as the action of a man supremely confident of his role and capacities. Appearing as counsel would enable the former accomplished trial lawyer to show off his skills in marshalling and presenting the evidence in what, given the Albanian denials of complicity in the laying of mines and of knowledge of the existence of the mines, was shaping up as, in part, the equivalent of a complex and demanding witness action in which it would be necessary for the UK to rely on circumstantial and expert evidence and inference. It would also enable Evatt the former appellate lawyer and appellate judge to demonstrate that grave international disputes could and should be resolved peacefully according to accepted and evolving norms of civilised international behaviour. At a critical turning point in world history, Evatt would demonstrate to the new court (and, indeed, to the world) the superiority of the rule of law to the rule of brute force and thus stamp his mark indelibly on a newly evolving and civilising international jurisprudence.
Faced with the problem of deciding what to do about the overture which Evatt had made to McNeil, on 18 November 1947 Shawcross asked the Legal Adviser to the Foreign Office, W E Beckett, to consider the proposal. Given the status of his position, Beckett could only have viewed the prospect of the acceptance of Evatt’s proposal as inevitably leading to a demotion for the Legal Adviser. A day later, he provided the UK Attorney with following negative response:
I think the problem here is to find the most tactful reasons for refusing this remarkable and, I think, rather embarrassing offer. Of course, the UK, when choosing Counsel to argue an important case before the Hague Court, can employ Counsel from any country in the world. Large countries like the UK have hitherto always felt that they can find the necessary legal talent inside their own countries. People in England, indeed the whole world, would be startled and puzzled at the inclusion in the team of an Australian lawyer who is also Australia's Foreign Minister. Nobody would suppose that Dr Evatt had been included in the team merely because he was a better lawyer than anyone who could be found in the UK. People would be seeking to find a political significance for his appearance there. If Dr Evatt was not Foreign Minister, and was merely an Australian King's Counsel, it might be a bit different and might be interpreted as a move towards the establishment of a sort of Hague Court Bar of lawyers particularly qualified to conduct cases before that Court. But Dr Evatt is Foreign Minister, and, moreover, Australia played a useful and prominent part in the discussion of this matter in the Security Council. Of course, I do not need to say how embarrassing a member of the team Dr Evatt would in fact be. You would have to lead him, and I do not anticipate that, in the oral hearings, there will be much, if any, need for anybody to follow you. We shall probably find that nearly everything that can be said has been said in the written pleadings. But Dr Evatt is not going to go to the Hague unless he is going to take a leading part and, moreover, he will be a very difficult person for you to control. He might wish to take a line rather different from that we have already taken in the written pleadings, etc etc. I suggest that you should express enormous appreciation of the offer, say that, in principle, we think it quite a good thing that countries, when they go to the Hague, should, when appropriate, include amongst their Counsel lawyers from another country and that, as between members of the Commonwealth, on occasions this might be specially indicated. But you think that it would be a mistake for Dr Evatt to appear in this case just because he is the Foreign Minister of Australia and the world could hardly be got to believe that his appearance amongst our Counsel was merely because he was the best pleader in the world but would be sure to try and draw from it all sorts of unfounded political inferences.[80] (italics added)
‘Of course, I do not need to say how embarrassing a member of the team Dr Evatt would in fact be.’ Beckett was no fan of Evatt. Indeed, there was, it seems, some doubt in the minds of British diplomats as to whether Evatt had actually been serious when he made the suggestion to McNeil. Doubtless for Beckett and his Whitehall colleagues, Evatt’s overture was the kind of informal passing remark that a person with a big ego and a tendency to occasional impulsive behaviour might well make. Shawcross sent Beckett’s advice to McNeil with the following query: ‘What do you think about this awkward point – is it necessary for us to do anything?’
There was a strained relationship between Australia and the UK in the early postwar years. Part of this can be traced to the way Evatt conducted Australian foreign policy, but the fact was that, in a way that has not really been emulated since, Australia – through the instrumentality of Evatt – sought to pursue a genuinely independent foreign policy.[81] Yet, there was much in common between the two labor governments in terms of their respective parties’ origins and their fundamental domestic political philosophies and commitments. Perhaps motivated by some sense of fraternal obligation, McNeil was not prepared to accept Beckett’s advice preferring instead to have Shawcross look at the matter more closely. He wrote the following comment on Beckett’s advice:
I don’t like to discuss it just like this. It is a delicate decision but what political inferences could be drawn that would be embarrassing to us? I doubt, moreover, if he would be too difficult. Would you consider doing a short minute for submission to our [Secretary of State] and then to P J Noel-Baker?[82]
Shawcross acceded to McNeil’s request. For reasons that may now only be speculated about, Shawcross appears to have devoted substantial time and effort to the task of considering and formulating a suitable response to Evatt’s overture. In a minute dated 11 December 1947, addressed to his ministerial colleague, McNeil, Shawcross acknowledged that Beckett had identified ‘some substantial practical difficulties’. But the Shawcross political tone was different to Beckett’s starchy and antagonistic bureaucratic tone.
Like McNeil, Shawcross exhibited some muted liking for Evatt’s offer. He considered that Evatt ‘would hardly wish to be a silent assistant at the trial, although if there were an opportunity for him to speak, I do not have much fear that he would wish to depart from the line taken in our Pleadings’. Unlike Beckett, Shawcross was not convinced that there were serious political implications involved in having a foreign minister of one of the Dominions appearing as counsel in the case. He made it clear that he would have no objection to Evatt appearing and that he would certainly be glad to do anything at all which would strengthen the relationship between Britain and Australia. Shawcross went on to record that he would be very willing that Evatt should play the leading part in the case if that would promote better relations between the two nations. But Shawcross did not think it was practicable to let Evatt do so since it was the UK that was party to the proceeding and it was the first law officer of the UK that must appear. In this, Shawcross was surely on firm ground.
Shawcross recorded that he had spoken to members of the Australian Delegation to the UN[83] and understood that Evatt had put the proposal forward quite seriously and was still thinking about it. Shawcross went on to record: ‘I am afraid, therefore, that we cannot let it drop, and probably the Foreign Secretary [Ernest Bevin[84]] will think it desirable himself to write to Dr Evatt, dealing with the matter one way or another’. Shawcross brought all his considerable diplomatic talents to bear on devising a suitable positive response:
I wish I could be more helpful in suggesting which way he should reply. My inclination is to write to Dr Evatt and to say that we would be delighted to have his assistance as a member of the team at the Hague, but that in all probability there will only be occasion to make one short speech, and that it is felt that this must be made by the Chief Law Officer of the United Kingdom Government as the complainant in the case. In these circumstances, it might be said, possibly Dr Evatt would not wish to be a member of the team, but if, notwithstanding the fact that it is unlikely he could play any very active part in the actual proceedings, he did wish to be present as a member of the team at the Hague, his assistance would be welcomed.[85]
Beckett’s diplomatic colleagues were not at all attracted to the Evatt offer. It is likely that their negative reaction was to some extent based on personal dislike of Evatt. On 15 December 1947, G E B Shannon of the Dominions Office, in a minute to Sir Eric Machtig, the permanent under-secretary of the Dominions Office, deplored Evatt’s offer. He isolated two matters for decision: first, was the British Government to accept Evatt's offer or not? Secondly, if the offer was not accepted, what reason was to be given to Evatt?
It seems to me that the offer should not be accepted – not because Dr Evatt might be ‘difficult’, nor because there is any objection to employing Australian or other Dominion Counsel to plead a United Kingdom case, but because the case is ‘United Kingdom versus Albania’ – not ‘United Kingdom and Australia versus Albania’. Moreover there is no special Australian interest in the case. It was RN ships that were sunk, and the Australian Government have not taken part in the diplomatic correspondence preceding the reference to the International Court. Australia did take part in the discussion in the Security Council, but only as a member of the Security Council, not as an interested party. In these circumstances Dr Evatt’s appearance as one of the UK counsel would only lend colour to the Soviet accusations that Australia is merely a UK ‘stooge’ and not truly independent.[86]
Shannon’s view was that if it was decided not to accept, it was best not to say anything to Evatt on paper, since he had not put his offer on paper. Not surprisingly, Machtig agreed with his colleague Shannon.
Somewhat in the manner of a hot potato being passed from hand to hand, Evatt’s suggestion was then given to another of McNeil’s ministerial colleagues, Patrick Gordon-Walker,[87] for consideration. Like McNeil, Gordon-Walker was disinclined to reject Evatt’s approach out of hand:
I doubt whether people in the UK would resent Evatt – They don’t know him well and might like the idea of the Commonwealth helping each other out. The ‘stooge’ argument might be put to Evatt himself as it would [indecipherable] Australia, if true. I can see some attractions in the idea.[88]
On Christmas Eve 1947, Shawcross sent his ministerial colleague, Noel-Baker, a draft of a letter which he proposed be sent by McNeil to Evatt. The draft, which Shawcross had prepared after he had spoken to Bevin and Beckett, was a masterly tactful statement insofar as it declined Evatt’s offer. Its purpose was, as McNeil told Shawcross in February 1948, ‘to head [Evatt] off’ the Corfu Channel case.[89] The case was at an advanced stage which made it easier for the UK to keep Evatt out of the case.
In the proposed letter, McNeil would tell Evatt that Shawcross had asked to say particularly how much he appreciated Evatt's suggestion that he would consider appearing as a junior to Shawcross: in other words, thanks – but no thanks. The letter could have ended at that point, but in his draft Shawcross introduced an alternative, a sugaring of the pill, but a generous response nonetheless:
Whilst, however, it seems impracticable to enlist your assistance in the Corfu case, there is another matter which will shortly come before the International Court which we like to commend to you as being worthy of your personal intervention. I refer, of course, to the request for an advisory opinion on the considerations which may properly affect votes on the election of new members to the United Nations. This raises an important issue of principle and I imagine that it is very likely that some and possibly all of the Slav States may wish to appear before the Court and argue the matter. It will therefore be most important, both politically and from the point of view of the Court proceedings, that the case should be adequately argued on the other side. We would very much like you to take the lead in appearing before the Court and arguing the matter, and if you thought fit so to do, we would, I think, support your intervention without appearing ourselves. Perhaps you will consider this possibility.[90]
Under art 4 of Ch II of the UN Charter, membership in the UN was open to all peace-loving states which accepted the obligations contained in the Charter and in the judgment of the organization were willing and able to carry out those obligations. The admission of any such state to membership was to be effected by a decision of the General Assembly on the recommendation of the Security Council. Under art 18 of Ch II, a decision of the General Assembly on the question of the admission of a new member was to be made by a two-thirds majority of the members present and voting.[91]
Shawcross must have been told that Evatt had been very vocal about the issue of the election of new members of the UN. According to Evatt, the Security Council had been abusing its processes. It had been using its powers for improper purposes. In his address to the UN General Assembly on 18 September 1947, Evatt had said that perhaps the most striking use of the veto power for a purpose entirely unrelated either to enforcement measures, or even to the vital interests of any permanent members, was in relation to the admission of new members. Each applicant state had to be considered carefully to see whether there was compliance with the conditions laid down in the Charter. The likelihood is that Evatt had in the back of his mind the Irish constituency in the ALP when he criticised as unjustifiable the Soviet Union's vetoing of Eire’s application in 1946.
As matters are now shaping, it is not impossible that nations which not long ago were our bitter enemies will be admitted to the United Nations before peaceful neutrals who were sympathetic to the Allied cause. Was Eire kept out because it was alleged that she was not a democracy? Such an allegation would be palpably false, because Eire has a democratic constitution and government, and the devotion of Irishmen to individual freedom is well known. Eire is clearly a ‘peace-loving nation’ and should be admitted to the United Nations. There can be little doubt that the vast majority of the organization would accept this view. In this case the right to exercise an individual veto has been used to obstruct the overwhelming will of the majority.[92]
Evatt went on to argue that the Security Council had virtually usurped the powers of the General Assembly in arrogating to itself the right to decide whether or not a nation should be admitted to the UN. The Council should confine itself to making recommendations on matters clearly within its functions, such as the ability of an applicant to discharge its security obligations under the Charter and should leave the final decision about admission for the Assembly where there was no veto.[93]
After McNeil and Beckett made some minor changes to the Shawcross draft letter, it was approved by Gordon-Walker. In mid-January 1948, McNeil signed the letter to Evatt which was sent to him by despatch via the UK High Commission in Canberra reaching Evatt in early February.[94]
The Dominions Office file does not record Beckett’s view on the Shawcross suggestion or whether the British officials had any clear idea as to what Evatt’s response would or might be. For anyone prepared to wager on the outcome, it was probably a better than even money proposition that, subject to his other commitments, Evatt would accept the suggestion that he appear as leading counsel in the ICJ case concerning UN membership. However, Evatt passed up the opportunity.
On 18 February 1948, McNeil wrote to Shawcross and set out Evatt’s reply.[95] Evatt’s letter – a model of courtesy and common sense – makes it plain enough that he was alive to the fundamental concern which his original offer to McNeil had raised for the UK Government:
Many thanks for your letter re Corfu. I do not wish, under any circumstances to take any course which could embarrass either Shawcross or the United Kingdom Government.
As I told you, my chief interest in the case is that it is extraordinarily important from the point of view of international good behaviour and the question of circumstantial evidence – arising in a very interesting form.
Thank you for your reference to the Belgian matter, which does raise an important question of principle.
This is a hurried note to thank you for your courtesy in taking the matter so earnestly and seriously.[96]
Betraying more than just a hint of smugness and self-congratulation, Shannon asserted that by his reply ‘Dr Evatt has backed out of the suggestion that he sh[oul]d be UK counsel in the Corfu case’ and that Evatt had thereby implied that he ‘never meant to be taken seriously (which was the CRO view all along)’ (italics supplied). Whatever other complaints could justifiably be laid at Evatt’s door, Shannon’s mention of an implication seems far fetched and fanciful.[97]
The hearing by the ICJ of the Albanian preliminary jurisdictional objection in the Corfu Channel case took place at The Hague on 26, 27 and 28 February and 1, 2 and 5 March 1948.[98] On 25 March 1948, the ICJ delivered judgment rejecting Albania's preliminary objection. The Court held that a communication dated 2 July 1947 addressed to the court by the Albanian Government constituted a voluntary acceptance of the court’s jurisdiction.[99]
Immediately after the dismissal of the preliminary objection, and in an exceptional display of co-operation, the British and Albanian governments announced that they had agreed to submit the following two questions to the Court:
1 Is Albania responsible under international law for the explosions which occurred on the 22nd October 1946 in Albanian waters and for the damage and loss of human life which resulted from them and is there any duty to pay compensation?
2 Has the United Kingdom under international law violated the sovereignty of the Albanian People’s Republic by reason of the acts of the Royal Navy in Albanian waters on the 22nd October and on the 12th and 13th November 1946 and is there duty to give satisfaction?
Written pleadings on the merits were completed in September 1948. The hearing of oral arguments on the merits commenced on 9 November 1948 and concluded on 17 December 1948. The UK called its seven witnesses between 22 November and 4 December; Albania called its five witnesses between 4 and 14 December. There was further (reply and rejoinder) oral argument between 17 and 22 January 1949.
On 9 April 1949, the ICJ delivered judgment on the merits upholding the UK claim. On the first question, the court determined by eleven votes against five that Albania was responsible for the explosions that occurred and for the ensuing damage to the British warships and the loss of life. The court held that the evidence established that the damage could not have been caused by floating mines, magnetic ground mines or magnetic moored mines. The Albanian suggestion that the minefield discovered on 13 November 1946 may have been laid after 22 October 1946 was unsupported by any evidence and was too improbable to be accepted. The Court held that the charge that Albania knew of or connived at the laying of the mines was a charge of such exceptional gravity against a State that it requiring a high degree of certainty that had not been reached. Nevertheless, the Court’s answer to the first question attributing legal responsibility to Albania was justified by the evidence of Albania’s admitted constant vigilance over the North Corfu Channel after May 1946, of the Albanian order to fire on the Orion and Superb, of Albania’s repeated demands that permission for passage was required, of Albania’s failure to protest in its notifications to the UN Secretary General about the laying of a minefield, of its failure to notify the presence of mines in its waters at the latest after the sweep carried out on 13 November 1946, and of its failure to investigate the events of 22 October 1946. In addition, their geographical configuration were such that the Bay of Saranda and the channel used by shipping through the Strait were easily watched, the minelaying operation required a certain minimum lapse of time, and visibility and sound tests were conducted which had led experts to the conclusion that it was indisputable that if a normal look-out was kept at specified locations the minelaying operations must have been noticed by coastguards.[100]
On the second question, the Court observed that the intention of the UK on 22 October 1946 must have been not only to test Albania’s attitude, but at the same time to demonstrate such force that she would abstain from firing again on passing ships. It held, by fourteen votes against two, that having regard to all the circumstances it was unable to characterise these measures as a violation of Albanian sovereignty because on that day the Royal Navy vessels were exercising the right of innocent passage which the Court declared existed in international straits. However, the court unanimously held that the same justification did not apply to the mine-sweeping operation carried out on 12-13 November 1946 which it held was a violation of Albanian sovereignty. The Court rejected the arguments that the United Kingdom had rights of intervention and self help and went on to hold that its declaration that the UK had violated Albanian sovereignty was ‘in itself appropriate satisfaction’.[101]
By a judgment pronounced on 15 December 1949, the ICJ fixed the amount of compensation due from Albania to the UK at £843,947.[102] The fact that Albania defied the court's order was scarcely a surprise given the prevailing deteriorating state of east-west relations. By the end of the decade, things had become a whole lot worse than they were when the Corfu Channel incidents had occurred. The USSR had extended its hegemony in eastern Europe. Admittedly, the Soviets had ignominiously called off the Berlin Airlift in May 1949. But in September, came the announcement that the Soviets had detonated an atomic device. Then, in October the last vestiges of Chaing Kai-Shek’s Koumintang regime had been chased from the Chinese mainland and the People’s Republic of China had been proclaimed.
Article 94(2) of the Charter provides that if any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the ICJ, the other may have recourse to the Security Council which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.
The UK did not go back to the Security Council. Instead, it made an unsuccessful collateral attempt to enforce its judgment by resorting to the ICJ. A quantity of monetary gold removed by the Germans from Rome in 1943 was later recovered in Germany and found to belong to Albania. The January 1946 Paris agreement on German reparations provided that looted monetary gold found in Germany or in third countries should be pooled for distribution among countries entitled to receive a share of it. The UK claimed the gold in partial satisfaction of the ICJ judgment in its favour. Italy claimed the gold in partial satisfaction for the damage which it alleged it had suffered as a result of an Albanian law of 13 January 1945 confiscating Italian assets, or under the Italian Peace Treaty.
In a statement issued in Washington, DC on 25 April 1951, the French, UK and US Governments, who were responsible for implementation of the reparations agreement, decided that the gold should be delivered to the UK in partial satisfaction of the ICJ judgment in the Corfu Channel case unless within 90 days of the communication of an arbitrator’s opinion to the three nations, Italy or Albania applied to the ICJ requesting it to adjudicate on their respective rights. The arbitrator decided on 20 February 1953 that the gold belonged to Albania. Albania, which had not accepted the jurisdiction of the ICJ, took no action, but Italy filed an application. However, Italy later raised a preliminary jurisdictional question.
On 15 June 1954, the ICJ unanimously decided that, without the consent of Albania, it could not deal with a dispute between Albania and Italy and that it was therefore unable to adjudicate on the submission that the three governments should deliver to Italy any share of the gold that might be due to Albania under the Paris Agreement in partial satisfaction of the damage caused to Italy by the 1945 Albanian law.[103]
I also informed Comrade Stalin of the verdict of the Court at the Hague. ‘As I have told you earlier’, I said among other things, "this court investigated the so-called Corfu Channel incident, and manipulated as it was by the Anglo-American imperialists, in the end unjustly condemned us and ordered us to pay the British tin (sic [an?]) indemnity. We did not accept this arbitrary decision, but the British seized our gold which the German Nazis had plundered from the former National Bank of Albania. When the gold plundered from the occupied countries and carried away to Germany by the Nazis was discovered, at its Brussels meetings in 1948, the Tripartite Commission charged with its distribution allotted Albania a part of what belonged to it. Now the British have seized a part of our gold, have frozen it and do not allow us to withdraw it according to the decision taken in Brussels.[104]
And there, more or less, the matter of the Corfu Channel incident rested – for four decades. It seemed clear enough that the existence of the Cold War was an insurmountable barrier to Albanian compliance with the ICJ compensation order (and, consequently, to Albania’s recovery of its looted gold). As late as March 1990, the policy of Her Majesty’s Government remained that it would
be able to agree to the Tripartite Gold Commission’s releasing gold to Albania only when Albania has paid the compensation awarded to Britain by the [ICJ] in the Corfu channel case. This delay will not, however, penalize the survivors and the families of those killed on board HM ships Saumarez and Volage. All concerned were fully compensated at the time under the regulations then in force.[105]
However, the Cold War was ending. Discussions between the UK and Albania took place in December 1990 leading to the resumption of diplomatic relations. The People’s Socialist Republic of Albania came to an end in 1991. Then, on 8 May 1992, the parties to the Corfu Channel case announced that they had settled their differences. In a joint announcement, ‘Both sides expressed their regret at the Corfu Channel Incident of 22 October 1946’.[106] It might be suggested that any surviving crew members of HMS Saumarez and HMS Volage or the families of the dead and injured would have found the expression of undifferentiated diplomatic ‘regret’ puzzling if not annoying. The UK agreed to approve the delivery of 1,574 kgms of gold previously identified for allocation to Albania. In return, Albania agreed to pay the UK $US2 million in full and final settlement of the UK financial claims. Delivery of the gold was to be conditional on the consent of France and the USA. Upon the settlement of outstanding claims it had, the US removed its hold over the gold in 1995. France gave its consent in February 1996. On 29 October 1996, 50 years and one week after the mining of HMS Saumarez and HMS Volage, the Secretary-General of the Tripartite Gold Commission met in London with representatives of the Albanian Government to conclude the transfer of the Commission gold, to Albania. At the same time, the Albanian Government settled the British claim for compensation for the Corfu Channel incident.[107]
Evatt’s approach to the Security Council investigation and his expression of willingness to appear as counsel for the UK displayed a characteristic blend of idealism, naïveté, grit, and impatience. Evatt wanted Australia to participate in the UN to the fullest possible extent and to act as a model international citizen. At least in 1945-1947, Evatt was disinclined to allow the worsening Cold War environment to dictate Australia’s stand. He repeatedly made his/Australia’s position clear. States and their representatives ought to be fair-minded and reasonable. They ought to be willing to co-operate in resolving disputes peacefully and in seeking the relevant facts in an orderly and dispassionate manner. They ought not frustrate the proper working of the UN and its agencies for partisan reasons. Evatt claimed that he had ‘tried to avoid wishful thinking’.[108] However, the fact was that big power politics and Cold War realpolitik were the dominating considerations in the working of the UN almost from the outset.
In taking Hasluck to task for contacting Cadogan’s delegation during the Sub Committee investigation of the UK complaint about Albania, Evatt displayed exquisite sensitivity and misconceived the investigating Committee’s task. For the purpose of the domestic rules of procedural fairness (then called natural justice), context was (as it remains) all-important. The substantive content of procedural fairness was inherently flexible depending on the specific context. It was dictated by the circumstances of the given case and, in part at least, qualified by a common sense rule of necessity. By analogy, in the international context of early 1947, it is very difficult to grasp how the Australian delegation’s contact with the UK delegation could in any meaningful sense give rise to an appearance of lack of objectivity or lack of impartiality or, worse still, a suspicion of actual bias on the part of Australia.
Under art 24(1) of the Charter, the member nations conferred on the Security Council primary responsibility for the maintenance of international peace and security and the Council acted on behalf of the member States. Evatt’s use of the term ‘the parties to the dispute’ is apt to mislead. It is true that Art 27(3) of the Charter provided that in decisions under Chapter VI (‘Pacific Settlement of Disputes’) ‘a party to a dispute shall abstain from voting’ on a Security Council decision. Otherwise, arts 28-32 regulated the Council’s procedure.
The fact that the UK was ‘not represented on the committee’ seems hardly to the point. It was the Security Council’s committee and the UK was one of the permanent members of the Council. The Sub Committee’s limited, albeit very important, task was to investigate and report back to the Council. It was not required to determine anything in the sense of a binding adjudication. The fact-finding task was central to the proper discharge of the Security Council’s function, but it was a step along the way and, as a matter of practicalities, that contextual consideration governed the flexible nature of the obligation of fairness cast on the Sub Committee’s members.
There was an element of inconsistency in Evatt’s rather strict approach to the functioning of the Security Council. He was at pains to stress the fact that the General Assembly was not some grand world parliament. Yet, if it was necessary to make that point, surely there was a need to recognise the uniqueness of the Security Council at least to the extent of not burdening it with limitations which might be justified when applied to some domestic quasi-judicial organ, but were unrealistic in the partisan context of the UN.
It would, however, be unfair to Evatt to dismiss his displays of juridical high-mindedness in the sphere of international conflict resolution as hopelessly misplaced. Evatt’s excessive legalism had a very appealing practical dimension which continues to be of utility. Geoffrey Sawer observed more than 40 years ago that Evatt’s passion for protecting the propriety and integrity of the UN’s fact-finding processes was calculated to produce delay and thus lessen the likelihood of extended violence. (It has to be said in passing that it would not necessarily be so in every case.) Moreover, judicial intervention was central to the restoration of order in disorderly societies. If anything, argued Sawer, Evatt did not bring his legalism (excessive or otherwise) to bear soon enough:
Perhaps the reference to the Court might have been advocated at an earlier stage, since it was so obvious that in the political inquiries the Communist powers would support the Albanians whatever the facts. But some sifting of the facts by a Security Council inquiry committee may have been necessary in order to isolate the justiciable issue, and in the result this was the sole case dealt with by the Security Council during the period under review which illustrated the possibilities of effective United Nations action to settle potentially dangerous disputes. (italics supplied)[109]
Evatt mostly passed out of the international limelight following the decisive defeat of the Chifley Government at the election conducted in December 1949. Australian foreign policy went off in another direction. In the four decades since Evatt's death there has been recurrent international armed conflict. The UN has had a long and mixed history of peace-keeping activity. The decision on the merits in the Corfu Channel case has continued to have an impact on the evolution of international law. The excerpt from the majority judgment which is set out at the commencement of this piece has been frequently cited and may be subjected to further scrutiny as the claims for a right of unilateral pre-emptive intervention threaten to diminish the concept of sovereignty and the role of the UN. Were the H V Evatt of the period 1945-1949 to return to life now, it is likely that he would be horrified by the side-lining of the UN in the years following his death in 1965, by the long history of flagrant misuse of the Security Council veto, and by the inability of the ICJ to have a more decisive role in the implementation of Chapter VI of the UN Charter. Evatt’s persistence in battling David-like to curb the harm caused by the Goliath of big power rivalry and bullying continues to provide an important lesson, perhaps more so than at any other time in the history of the UN. It seems highly likely that Evatt would have welcomed the establishment of the International Criminal Court and would have had something constructive to say – with characteristic brusqueness – about the vexed question of enforcement of Security Council resolutions. Allowing for all of Evatt’s manifold failings, his behind-the-scenes exertions in trying to effect a peaceful settlement of the Corfu Channel dispute is another illustration of his enduring contribution to the rule of law. There is, of course, no way of knowing whether an appearance by him as counsel before the bar of the ICJ in the Corfu Channel case half a century ago would have led to a more successful or effective decision. What seems likely is that, given the Evatt persona and the intensity of the feelings aroused by his friends and foes alike, his role in the case would have made a distinctive mark in the quest for the peaceful settlement of international disputes.
[*] LLB (Melb), LLM (ANU) of the Victorian Bar. George Winterton very kindly read and commented on an earlier version of this article. The author expresses his appreciation for the very helpful comments and suggestions of the Journal’s two anonymous referees. The opinions expressed (and any errors remaining) in the article are those of the author alone.
[1] (Corfu Channel case (Merits) (United Kingdom v Albania) (9 April 1949) ICJ Reports, 4.
[1] (1894-1965): See A Dalziel, Evatt the Enigma (1967); K Tennant, Evatt: Politics and Justice (1970); P Crockett, Evatt: A Life (1993); K Buckley, B Dale and W Reynolds, Doc Evatt (1994); G C Bolton, ‘Herbert Vere Evatt’ 14 Australian Dictionary of Biography 108; G J Evans, ‘H V Evatt: Australia’s First Internationalist’ (1995 Daniel Mannix Memorial Lecture, Melbourne, 31 August 1995) http://www.dfat.gov.au/archive/speeches_old/minfor/
gemanix.html; D Day (ed), Brave New World: Dr H V Evatt and Australian Foreign Policy 1941-1949 (1996).
[2] The facts are stated in the ICJ decision on the merits: Corfu Channel case, ICJ Reports, 1949, 4. The author’s description of the background events and the diplomatic traffic also borrows extensively from the cables in the file of the Department of External Affairs: National Archives of Australia, A1838/274, Item 854/10/10, ‘Security Council Political and Security Questions: Incident In Corfu Channel’ (hereinafter ‘NAA’).
[3] See eg, M Glenny, The Balkans: Nationalism, War and the Great Powers, 1804-1999 (1999) 417-423; M Mazower, The Balkans (2000) 97-99; Parl Deb (Commons) vol 421, 15 April 1946, cols 368-369.
[4] G M Alexander, The Prelude to the Truman Doctrine: British Policy in Greece 1944-1947 (1982) 115.
[5] C M Woodhouse, The Struggle for Greece 1941-1949 (1979) 158, 181.
[6] NAA, Cable D1000, Secretary of State for the Dominions to Canberra, 5 November 1946. F Ngantcha, The Right of Innocent Passage and the Evolution of the International Law of the Sea: The Current Regime of ‘Free’ Navigation in Coastal Waters of Third States (1990) 122-124; B B Jia, The Regime of Straits in International Law (1998) 36-47. One of the major advances in international law in the post-Second World War era was the completion of multilateral conventions on the law of the sea including the Convention on the Territorial Sea and Contiguous Zone (1958) and the Law of the Sea Convention (1982); see I Brownlie, Principles of Public International Law (5th ed, 1998) Ch IX.
[7] Diplomatic relations between the two nations were suspended following the incident on 15 May 1946: Parl Debates (Commons) vol 424, 1 July 1946, cols 1763-1765.
[8] The description of the naval events also relies on J Mervyn Jones, ‘The Corfu Channel case: Merits’ (1949) 26 Brit YB Int L 447; J L Brierly, The Law of Nations (6th ed, 1963) 421-422. For what might be termed a popular account of the Corfu Channel episode, see E Leggett, The Corfu Incident (1974); see also J L Brierly, The Spectator, 18 April 1947; E Luard, A History of the United Nations, Vol 1 The Years of Western Domination, 1945-1955 (1982) 209-212; H Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (1950); J Stone, Legal Controls of International Conflict (1954) 52, 206, 217, 269-270.
[9] Jones, above n 9, 447.
[10] Britain later contended that the white flag could be taken to mean that the Albanians knew that they had committed a hostile warlike act and wished a truce. The British crews had heard the firing of machine guns from the shore. The Volage was out of commission for many months: Jones, above n 9, 448. The Saumarez was a total loss: H A Munro, ‘The Case of the Corfu Minefield’ (1947) 10 Mod L Rev 363, 364, 366.
[11] (1896-1968). T Lie, In The Cause of Peace: Seven Years With the United Nations (1954) 432; J Barros, Trygve Lie and the Cold War: The UN Secretary-General Pursues Peace, 1946-1953 (1989).
[12] Yugoslavia and Albania had signed a Treaty of Friendship and Mutual Assistance on 9 July 1946 (1946-1947) UNTS No 15.
[13] Jones, above n 9, 448.
[14] Munro, above n 11. As presented to the ICJ, the UK case was that two Yugoslav war vessels, the Mljet and the Meljine, carrying contact mines of the relevant German type sailed southward from the port of Sibenik on or about 18 October 1946 and proceeded to the Corfu Channel and with the knowledge and the connivance of the Albanian Government laid mines in the Channel just before 22 October. It has been contended that whilst it was Yugoslavia that provided the mines and the technicians, it was most unlikely that the Soviet Union was involved: ICJ Reports, 1949, 15-16; Woodhouse, above, n 6.
[15] NAA, Cable D485, 9 December 1946.
[16] Corfu Channel case (Merits) ICJ Reports, 1949, 33-34.
[17] The text of the Note can be found in Parl Debs (Commons) vol 431, 11 December 1946, cols 1167-1175.
[18] NAA, Memorandum to the Minister, 14 January 1947. A record of the proceedings is contained in United Nations, Journal of the Security Council and in International Court of Justice, Pleadings, Oral Arguments, Documents: 1949 The Corfu Channel Case, vol 1, Annex 23 to UK Memorial, 174 (hereinafter ‘Pleadings’). Albania was not then a member of the UN: see below n 93. Under art 32 of the UN Charter, any state not a member of the UN, if it is a party to a dispute under consideration by the Security Council, ‘shall be invited to participate, without vote, in the discussion relating to the dispute’ and the Security Council is authorized to lay down such conditions as it deems just for the participation of the non-member state.
[19] After a succession of ballots, Australia and Canada were vying for the last place. Canada very generously yielded to Australia: P Hasluck, Diplomatic Witness: Australian Foreign Affairs, 1941-1947 (1980) 249. N J O Makin was the Australian member (and sometime President) of the Security Council.
[20] (1905-1993); Hasluck makes only a short passing reference to the Corfu Channel dispute in his diplomatic memoir, Diplomatic Witness, above n 20, Ch 25; R Porter, Paul Hasluck: A Political Biography (1993) ch 3. See also P Hasluck, Workshop of Security (1948), Dedication. The Corfu Channel incident is mentioned at pages 33, 48, 68, 82, 101-102, 104, and 148-149.
[21] (1892-1958); 9 Australian Dictionary of Biography 321; P G Edwards, Prime Ministers and Diplomats: The Making of Australian Foreign Policy 1901-1949 (1983) 104-109.
[22] NAA, Cable 26, 16 January 1947.
[23] (1884-1968); Cadogan had been Permanent Under Secretary of the Foreign Office in the years 1938-1946: Dictionary of National Biography 1961-1970 (1981) 164-166; D Dilks (ed), The Diaries of Sir Alexander Cadogan 1938-1945 (1971).
[24] For the full text of Cadogan’s presentation, see Pleadings, above n 19, 208.
[25] Convention Relative to the Laying of Automatic Submarine Contact Mines, 18 October 1907 (1907) 205 CTS 331. The text is also available at http://www.yale.edu/lawweb/avalon. The unnotified mining of Nicaraguan waters was one of the central complaints in Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) (Merits) ICJ Reports, 1986, 14.
[26] NAA, Cable UN161, 18 February 1947.
[27] For the full text of the presentation, see Pleadings, above n 19, 221.
[28] NAA, Cable 97, 19 February 1947.
[29] Pleadings, above n 19, 243. Cadogan said he was not entirely convinced the Australian proposal was useful or necessary but that he would not oppose it: Pleadings, above n 19, 263.
[30] NAA, Cable UN184, 25 February 1947.
[31] Resolution 19 (1947); NAA, Cable UN204, 27 February 1947; S D Bailey, The Procedure of the UN Security Council (1975) 281. Cadogan abstained from the vote on the sub-committee composition because Albania did not have a vote. There is a useful description of the Security Council process in the Corfu Channel dispute in T J Kahng, Politics and the Security Council: An Inquiry into the Handling of Legal Questions Involved in International Disputes and Situations (1964) 150-161.
[32] NAA, Cable UN252, 11 March 1947.
[33] Parl Deb (House of Reps), 8 November 1946, 95.
[34] NAA, Cable 163, 18 March 1947.
[35] Parl Deb, above n 34.
[36] For the text of the sub-committee's report, see Pleadings, above n 19, 312.
[37] NAA, Cable UN280, 18 March 1947.
[38] Ibid.
[39] Ibid.
[40] Hasluck, above n 21.
[41] NAA, Cable 172, 20 March 1947.
[42] NAA, Cable UN 295, 21 March 1947; see also Pleadings, above n 19, 287.
[43] Pleadings, above n 19, 369. Again, the UK did not participate.
[44] Ibid 377.
[45] Resolution 22 (1947); NAA, Cable UN 379, 9 April 1947; Pleadings, above n 19, 392; The Sydney Morning Herald, 11 April 1947; Gromyko does not mention the Corfu Channel incident in his memoir, A A Gromyko, Memories (1989).
[46] Australia, Belgium, China, Columbia, France and the United States voted in favour of the resolution. Syria abstained, and the UK (again) did not participate: Pleadings, above n 19, 393; Munro above n 11. As a party to the dispute, Britain did not vote. NAA, Cable UN379, 9 April 1947; Brierly, The Law of Nations, above n 9, 422.
[47] A Eyffinger, The International Court of Justice 1946-1996 (1996); Munro, above n 10. Munro observed that it was ‘a mark of the advances made in at least some directions that the damage and loss of life last October were not followed at once by anarchic reprisals, bombardments of the Albanian coast, and demands for indemnities’ 363. See also the technical discussion by Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice (2 Vols, 1986) Vol 1, 27-31; 126-131.
[48] (1898-1972); (1972) 46 ALJ 152 and 366; 13 Australian Dictionary of Biography 89.
[49] Hasluck, above n 21, 82.
[50] In the post-war years, Evatt made the following ministerial statements on external affairs: 13 March 1946, Parl Deb (House of Reps) 187-206, 23 March 1946, Parl Deb (House of Reps) 622-631; 8 November 1946, Parl Deb (House of Reps) 89-104; 15 November 1946, Parl Deb (House of Reps) 334-347; 26 February 1947, Parl Deb (House of Reps) 159-190; 6 June 1947, Parl Deb (House of Reps) 3677-3701; 11 March 1948, Parl Deb (House of Reps) 558; 8 April 1948, Parl Deb (House of Reps) 739-752; 9 February 1949, Parl Deb (House of Reps) 75-92, 469-481; 21 June 1949, Parl Deb (House of Reps) 1212-1226; Edwards, above n 22.
[51] H V Evatt, Australia in World Affairs (1946); H V Evatt, United Nations (1948); T L H MacCormack, ‘Evatt at San Francisco’ (1992) 13 Aust YB Int L 89; G Simpson, ‘The Great Powers, Sovereign Equality and the Making of the United Nations Charter’ (2000) 21 Aust YB Int L 133.
[52] Buckley, Dale and Reynolds, above n 2, 302. On 17, 23 and 24 October 1947, Evatt delivered the Oliver Wendell Holmes Lectures at Harvard University in which he dealt with the formation, operation and future of the UN. Evatt (1948), above n 52.
[53] See the author’s ‘Downunder McCarthyism: The Struggle Against Australian Communism 1945-1960’ (1998) 27 Anglo-American L Rev 341 and 438.
[54] Cowen to Acheson, Despatch No 53, 15 March 1949, File CD22-1-19, Box 98, RG 330, National Archives and Records Administration, Washington, DC.
[55] For one account of how Evatt defies easy categorisation, see F Bongiorno, ‘Commonwealthmen and Republicans: Dr H V Evatt, “The Monarchy and India”’ (2000) 46 Aust J of Pol and Hist 33.
[56] Treaty of Peace (Japan) Act 1952. The main treatments of the immediate postwar period are Day, above, n 1; Edwards, above n 22; A Renouf, Let Justice Be Done: The Foreign Policy of Dr H V Evatt (1983); D Lee, Search for Security: The Political Economy of Australia’s Postwar Foreign and Defence Policy (1995); C Waters, The Empire Fractures: Anglo-Australian Conflict 1945-1949 (1995); D Lee and C Waters (eds), Evatt to Evans: the Labor Tradition in Australian Foreign Policy (1997); D Lowe, Menzies and the ‘Great World Struggle’: Australia’s Cold War 1948-1954 (1999).
[57] Crockett, above n 2, 229.
[58] For a range of useful detailed accounts of the early Cold War years from the extensive literature on the origins of the Cold War, see: F J Harbutt, The Iron Curtain: Churchill, America, and the Origins of the Cold War (1986); R B Woods and H Jones, Dawning of the Cold War: The United States’ Quest for Order (1991); M P Leffler, A Preponderance of Power: National Security, the Truman Administration, and the Cold War (1992).
[59] H V Evatt, ‘Risks of Big-Power Peace’ (1946) Foreign Affairs 195. The same piece, under the title ‘The Framing of the Peace’, is to be found in H V Evatt, Australia in World Affairs (1946) 123.
[60] W J Hudson and W Way (eds), Australia in the Postwar World: Documents 1947 (1995) 3. Evatt used the same expression in his Holmes Lectures, above, n 53, 48.
[61] Hudson and Way, above n 61; Evatt (1948) above n 52, 41.
[62] ‘The United Nations’ in G Greenwood and N Harper (eds), Australia in World Affairs 1950-1955 (1957) 93.
[63] ‘Hot and Cold: Dr Evatt and the Russians, 1945-1949’ in A Curthoys and J Merritt (eds), Australia's First Cold War 1945-1953, Vol 1, Society, Communism and Culture (1984) 81.
[64] Evatt, above n 52, 81; Parl Deb (House of Reps) 30 August 1945, 5024.
[65] Note (T G Glasheen), ‘Instructions Received from the Minister’, 19 January 1948, P Andre (ed), Australia and the Postwar World: Beyond the Region Documents 1948-49 (2001) 82-83. The predisposition to use the language of the law was evident when Glasheen recorded Evatt’s opinion that the Committee’s Observation Teams were ‘possibly ultra vires the Assembly Resolution’ (italics supplied).
[66] Evatt, The United Nations (1948) above n 52, 118.
[67] Ibid 63-68.
[68] Crockett, above n 2, 229.
[69] Greenwood and Harper, above n 63, 103.
[70] Ibid.
[71] Charter of the United Nations Act 1945; Parl Deb (House of Reps) 30 August 1945, 5016.
[72] Evatt, above n 53, 20, 106.
[73] (1907-1955); Dictionary of National Biography 1951-1960 (1971) 679-680.
[74] Public Records Office (UK) DO 35/2747 (hereinafter ‘PRO’).
[75] (1902-2003). Shawcross was the Chief Prosecutor for the UK at Nuremberg; Lord Shawcross, Life Sentence (1995); T Taylor, The Anatomy of the Nuremberg Trials (1992). Evatt’s suggestion appears to have been made informally to McNeil. I have not located any record of the words actually used by Evatt. Shawcross attributed to McNeil a request by Evatt in the terms of Evatt saying ‘that he would like to appear as Junior Counsel to me’ (italics supplied): PRO, Shawcross, Memo to Beckett, 8 November 1947, Memo to Beckett, 11 December 1947. Despite the antagonism and skepticism towards Evatt displayed by high officials of the Foreign Office and the Dominions Office, a willingness by Evatt to appear as a junior to Shawcross in the ICJ strikes this writer as entirely plausible, perhaps analogous, in the domestic context, to the Attorney-General leading the Solicitor-General in a case of great public importance. It seems beyond belief that Evatt (as First Law Officer of the Commonwealth of Australia) would have expected the First Law Officer of a party to the ICJ proceeding to defer to Evatt. Notwithstanding what Shawcross later said about the limited scope for Evatt’s participation (see text at n 91 below), the trial of the case on the merits could have been divided between counsel. It was, after all, a very complex case. The case on the preliminary objection may have been different. I was unable to locate any material concerning this episode in the Evatt Papers held at the Flinders University of South Australia. See also Hasluck, Diplomatic Witness, above n 21, ch 3.
[76] Bolton, above n 2, 108. Evatt’s revulsion at war was directly affected by tragic personal experience. His brother, Ray, who had been decorated for bravery at the Somme was killed in action near Ypres in September 1917. Another brother, Frank, was wounded in the same battle at Ypres, returned to active service, was again wounded and as a result died in September 1918: Buckley, Dale and Reynolds, above n 2.
[77] (1948) 76 CLR 1.
[78] [1950] AC 235. The Editor of the Appeal Cases was moved to introduce the listing of counsel as follows: ‘The hearing of the appeal lasted for 36 days between March 14 and June 1 inclusive – a record for length of time’; Ibid 240.
[79] Evatt (1948) above n 52, 42, 131-133.
[80] PRO, Memo, Beckett to Shawcross, 19 November 1947.
[81] Waters, above n 57.
[82] PRO, McNeil, Handwritten memo, 22 November 1947. Philip John Noel-Baker (1889-1982) was Secretary of State for Commonwealth Relations (1947-1950).
[83] This is a somewhat tantalising detail. The Dominions Office file, DO 35/2747, in the UK Public Records Office does not yield any obvious clue as to the identity of the delegation members to whom Shawcross spoke. Hasluck had resigned from government employment in late March 1947 and left the US in July 1947 to return to Australia. He had attended a Security Council meeting for the last time on 25 March 1947. Hasluck’s resignation had followed the controversial appointment of Dr J W Burton as permanent head of the Department of External Affairs. Hasluck had not welcomed the appointment: Edwards, above n 22, 181; Hasluck, above, n 20, 292. In the House of Representatives on 27 March 1947, Evatt was asked by H E Holt about Hasluck’s resignation. In a detailed answer several weeks later, Evatt said that the resignation was for personal reasons: Hansard (House of Reps) 23 April 1947, 1587. This was, at best, a half-truth. On Evatt’s treatment of Hasluck as a senior (albeit temporary) officer of the Department of External Affairs and Hasluck’s deep resentment at that treatment, see Porter, above n 21, ch 3. For Hasluck’s arrestingly blunt comments following Evatt’s death, see P Hasluck, The Chance of Politics (1997) 79. Hasluck considered that he had reason enough to resign. But perhaps Evatt’s attitude to the delegation’s conduct in the Security Council treatment of the Corfu Channel incident reinforced Hasluck’s conviction that he would be better off not having to put up with Evatt’s badgering and that his diplomatic career should be ended. Hasluck was elected to the House of Representatives at the historic 1949 election and was Minister for External Affairs between 1964 and 1969 when he left politics to become Governor-General of Australia.
[84] (1881-1951); Dictionary of National Biography 1951-1960 (1971) 102-110; A Bullock, Ernest Bevin, Foreign Secretary 1945-1951 (1983) 308, 399. According to that astute observer of Balkan politics and history, C M Woodhouse, during the Greek civil war (1946-1949) Bevin was uncompromising in his dealings with Albania ‘having never forgiven the Communist government for mining [the] British destroyers ... in 1946’, Woodhouse, above n 6, 234.
[85] PRO, Shawcross, Minute, 11 December 1947.
[86] PRO, Memo Shannon to Machtig, 15 December 1947.
[87] (1907-1980); Parliamentary Under Secretary of State for Commonwealth Relations (1947-1951); Dictionary of National Biography 1971-1980 (1986) 352-354. There is no mention of the Corfu Channel incident or the ICJ case in R Pearce (ed), Patrick Gordon Walker: Political Diaries 1932-1971 (1991).
[88] PRO, Handwritten File Memo, Gordon-Walker, 16 December 1947.
[89] PRO, Letter, McNeil to Shawcross, 18 February 1948.
[90] PRO, Handwritten File Memo, 24 December 1947. This passage in the Shawcross draft was amended by the Foreign Office to read as follows: ‘Whilst, however, it seems impracticable to enlist your assistance in the Corfu case, there is another matter which will shortly come before the International Court which we like to commend to you as being worthy of your personal intervention. I refer, of course, to the request for an advisory opinion, adopted on the proposal of the Belgian delegation, on the considerations which may properly affect votes on the election of new members to the United Nations, which raises an important issue of principle. It will therefore be most important, both politically and from the point of view of the Court proceedings, that the case should be adequately argued. Perhaps you will consider this possibility.’ This passage appeared in the final version signed by McNeil.
[91] See Advisory Opinion, Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) ICJ Reports, 1948, 61; http://www.icj-cij.org/icjwww/
igeneralinformation/ibbook/Bbook8-2.02.HTM; see also Advisory Opinion, Competence of the General Assembly for the Admission of a State to Membership in the United Nations, ICJ Reports, 1950, 4; http://www.icj-cij.org/icjwww/igeneralinformation/ibbook/Bbook8-2.02.HTM.
[92] Hudson and Way, above n 61, 3. In 1946, an application by Albania for UN membership was vigorously opposed by Greece which, as a part of the continuing postwar treaty-making process, was seeking to have its northern boundary adjusted to include northern Epirus at the expense of Albania. On 29 August 1946, Britain and the United States had vetoed the Albanian application. This led to the Soviet Union vetoing the membership applications of Ireland, Portugal, Siam and Transjordan: Alexander, above, n 5, 210-212. Albania was not admitted to UN membership until 14 December 1955; (1946) 17 Curr Notes on Int Affairs 558; (1947) 18 Curr Notes on Int Affairs 42.
[93] Hudson and Way, above n 61, 3.
[94] PRO, Memo, Horne to Hunt, 16 January 1948.
[95] Above n 90.
[96] PRO, Letter, McNeil to Shawcross, 18 February 1948. I have so far been unable to locate the original or a file copy of Evatt's letter of reply. The absence of an attached typescript copy of Evatt’s letter in the Dominions Office file and his use of the expression ‘This is a hurried note’ suggest that Evatt penned the reply.
[97] PRO, Handwritten notation on file, 19 February 1948.
[98] The UK was represented by Shawcross, Beckett, Dr Hersch Lauterpacht, Professor of International Law in the University of Cambridge, C H M Waldock, Professor of International Law in the University of Oxford, R O Wilberforce, J Mervyn Jones, and M E Reed.
[99] ICJ Reports, 1948, 15; Jones, above n 9; Green, Note (1948) 11 Mod L Rev 483; H F Bancroft and E Stein, ‘The Corfu Channel case: Judgment on the Preliminary Objection’ (1949) 1 Stan L Rev 646.
[100] Corfu Channel case (Merits) ICJ Reports, 1949, 4, 18-23. On the hearing on the merits, the UK was again represented by Shawcross, Beckett (who had been recently knighted), Waldock, Wilberforce, Jones, and Reed. On 15 November 1948, Shawcross had been replaced by the UK Solicitor-General, Sir Frank Soskice, MP. The two dissenters on the issue of Albanian responsibility, were Judges Azevedo (Brazil) and Krylov (Soviet Union). For commentary on the case, see L C Green, Note (1949) 12 Mod L Rev 505; Q Wright. ‘The Corfu Channel case’ (1949) 43 Am J Int L 491; Jones, above n 9; Note, ‘Peacetime Passage By Warships Through Territorial Straits’ (1950) 50 Col L Rev 220; Ngantcha, above n 7, 79-82, 93, 127-128, 171.
[101] ICJ Reports, 1949, 244; Jones, above n 9, 449-450.
[102] ICJ Reports, 1949, 244. Between July and October 1949, Albania made overtures to the British Government to settle the case.
[103] Case of the Monetary Gold Removed From Rome in 1943 (Italy v France, United Kingdom and United States of America) ICJ Reports, 1954, 19; http://www.icj-cij.org/icjwww/igeneral
information/ibbook/Bbook8-1.12.HTM; D H N Johnson, ‘The Case of the Monetary Gold Removed from Rome in 1943’ (1955) 4 ICLQ 93.
[104] See http://www.marxists.org/reference/archive/hoxha/works/stalin/meet5.htm.
[105] Parl Debs (Commons), 19 March 1990, col 451.
[106] Parl Debs (Commons), 14 January 1991, col 382; Memorandum of Understanding signed in Rome (1992) 63 Brit YB Int L 781; The Times, 9 May 1992, 10; Kathimerini (Athens), 9 May 1992, 21. Later that year, the first Royal Navy ship for 54 years sailed into Albanian waters as part of sanctions enforcement against Serbia: The Times, 23 November 1992, 29. See also Speech by H E Judge Gilbert Guillaume, President of the International Court of Justice, given at the University of Cambridge (Lauterpacht Research Centre for International Law) 9 November 2001, http://www.law.cam.ac.uk/RCIL/Guillaume.doc, 7-8.
[107] Parl Debs (Commons) 31 October 1996, WA, col 224; Note, (1996) 67 Brit YB Int L 814-819.
[108] Evatt, above n 52, 95.
[109] Above n 63, 105.