I.
I.c.J. A '.+-pl [ i\ji 5 i Comrr!uniquéNo, 57/46
The following inforw.tj_on ?rom the Registry of the Registry af the ,
International Court of Justkce is comunicated to the Press:
To-day, No-~ember 26t11, 1957, the InternationaC l~urtof Justice gave
ih JJuclgmerrin the case conckrning Right of Passage over lndian Territory
(Preliminar:~ 00 jeetions) between Portugal and India.
l T??ecase w2.s subrnitked by Applicztian of the Portuguese Government
requcsting the Cou& to recognize 'and declare tht Portugal is the holder
or bcneficiar yf a right of passage between its territory of do (littoral
D~O) and its enclaves of ïladra and Magar-hveli and betweei~ eachof the
latter and that this rightccimrsrixs the facultyof bransit for persons and
caods, fncluding arined forces, without restrictions or diffiçulties and in
the mm3r and to the extent required by the effective exereiseof Portu-
guese sovereigntg in the said terbritoriek, thzi India has prevented and
continues to prevsrit the exercise of the sight in question, thus cohtting
an offenceto the detrimsnt of Portuguese Sovereignty over the enclaves and
violating its interaz-tional obligations and to adjudge that India should
put.an iirmdiate end to this situation by allowing Portugal .toexercise
I the right 8f pssage thus claimed. The Application expressly referred to
ii:i-i;ic36, yaragraph 2, of the Statute end to the Declarations by which
Portugal m.d lndia hwe accepted the compslsory jurisdiction of the Court.
e The Governmnt of lndia Tor its part raiçed sixPrelimlnar y~jections
to the jurisdiction of the Court vd~ich wëre based on the following grounds:
The First Prelirrinary Gbject-ion ria5to the eifect tl-iat a condition In
the Pori:ugueçe Declaration of December 19th, 1955, accepting the jurisdiction
of the Court reserved for tl-ietGcvernmeiit "the right to exclude from the
scope of the present Declaration at any the duringits validity any given
category Gr categories of disputes. by notifying the Secretary-Genera olf
the Unikeid id2br:.çinsandwïth effeci froin the moment 02 çuch notificationl!
and was incompztible ivith the object and purpose of the Optional Clause,
with the rzsult that the Declaration of ikceptance waç invalid.
The Second Pre1iiACnar:r Objection 142sbased on the allegation that
the Portuguese Applicatiori of Uecerzber 22nd, 1955, rzrils fïiebefore a
eopy of the Declaration of Portugal accepting the compulsory jurisdiction
of the Court could be transr?_it+,edto other Parties to the Statute by
the Secretarg-Genera inlcoro.pliance wtth krticle 36, paragraph 4, of the
Statute, The filinq cifthe i'lpplic.tl.on h~dthus violated the cquality,
e mtuality and reciprocit;rto which India >raselztitled under tho Optional
Clause and under the e:qress ccadition of reciprocitg contained in its
Declarztio oni F~bruzry 2$th, 1940, accepting the compulseuy jurf sdict ion
of the Court.
The Fourth Freliminary Objection requested the Court to declare th&
since India had ignored tne Portuguese Declaratia neforethe A9plication
was filed, lndia had beon unable to avail itsebfon bhe basis of
reciprocityof the condit ion in the Portuguese Declasation enabling it
to e::cludc frcm the juriçd&tion of the Court the diapute which was the
subject ]natter of ihe Applicatfon,
The Third Preliminary m,jeetion was basedon the absence, prior
to the filing of the i~pplic?.tion, of diplomatic negotiations which
would have made it possible to define the subjectrmtter of the clain,
.
The Fifth Prellrnii~argObjection was baçed on the reservztion in
the lndian Declaration of kcceptazce whicii excluees from the jurisdiction
of the Court disputes in regard to questions %hich by international law
Sa11 exc!.usively withinthe jurisditc ion of the Govsrm~ent of India.
That C+vernmsnt asserted that the facts and the Icgal considerations
adduced before the Court did noC, perfiritthe conclusion thatthere was
a reasonzbly wguable case for the contention that the eubjectmatter of
of the dispute was outslde i"~s domestic jurisdiction. Finally> in Th& SLich Preliminar ybjection, the Government of India
contendedthatthe Court wa~ withmt jurisdiction on the gmund that India's
Declaration of Aceept ance tas limiled to "dtsputes arising after February
5th, 1930 with regard to situations or factssubsequent to the sme date.
The Goverment of India argued: firut,th~.t the dispute submitted to the
Court by Portugal did not arise after Febmary Sth, 1930 and, secondly,
thatin zny case, it was a dlsputerwib regard to situ~tiuns and fzcts
prior ta that date.
The Goverm~nt of Poriu;al had added to its Submissions a statewnt
requcsting the Court to recall to the Larties .the univorsally admitted
principle thzt the7 sliûu1.d frzcilitate the acco~iq3lisl.imen~ of the task of
the Court b:r aiastnhing frori~any masure cap?-ble of exercising a pre judicial
effect 5" regard to kii?_exec~~tion of its decision or which mîghb bring
about eiti-rer an aggravation cr an extension of the dispute,. The Court
did not consider that in the circu.?fictsnces of the 17reseni case it should
coqly wîth t'-is reqv.est of the Gov?rnrilcnt of Portugal.
In Its J~?gr,en-t;, theCcurt rejected the First and the Second Freîiminary
Objections hy fourieen vcitcs to threc, the Third by sixLeen votes to one and
the Fourth by fifteen votes to twe. By thirteen votes to 'fcur it
join~d .the Fif-th Objection to the nerits and by fifteen votes to two
johed the SLith Gbjoction ko the rnerits. Finally, it declared thut the
proceadings on the muritswerc resumed and fixed as follows the tirne-
limj_ts for the rest of the praceedin~;~; a
For the filing of tho ~ounter-Nemorial of India, February 25th,
1958; 'for .the filhg of the Portuguese '%pl;lr,+lay 2$th, 1958; for the
filhg of the Xndiar! Rejoinder, July S5th, 1958,
Judge K~je-mikov shted th~the could not concur either in ihe
opeirarive clause or in the reasoning of the Judgment becaxe, in his
opinion, the Cmnt ühould> xt tht pl*esent stage of Vhe proceedings,
have sustaineb one or indeed p.aFeOSthe Preliminary Objections,
Vice-President Eadawi ad Judge Xlaestad appendcd $0 the Judgment
statements of theil- dissenting opinions, W. Fernnndcs, Judse ad hoc,
cuncurred In the dissenting bpinior! of Judge Uaestad and T'ir.Chagla,
Judse ad hoc, appended to the Juclzïi~ena s%atsmcnS, of his dissenting
opinion.
uitk regard to the First Prelirmnary Objection tci the cffect that '
the Portuguese ~eclaratim for the reason t1-iathe condition
enabling Por-i;ugal to exclude et any thne f'romthe scope of thatDeclaration
any given categriries of ctis!~t?tes by mere notification. to the Secretary-
General, the C0ui.t said thztthe wordsused in tl?e.condition, .constmed
in thcir ordinari sensc, 19-ean-lsirnply tha~ 2 notification under th2.t
condition applied oniy to di~mtes brought before the Court aftes the
date of the notification. No rotroactive effcct could thus be imputed
to sucha notification. Zn tuis conneetion th2 CoL:rt refarrzd to
th5 princinle which it h2.dlaid dotm in the Nottebohrn c2se in the Following
words: Illmextrinsic fact such as the lapse of the Declaration by reason
of the e-xpiry of the perfod or of d.enunciation cannot deprive the Court
of the jurisdiction alrezdy irstablished. If The Court edded that tllis
principle applied bath to totzl denmciation, and to partial denunciation
as contemplzLe n the iqnugncd condition of thePortuguese Beclaration.
India'hzving çonhended thai this conditio nad introduced into the
Declaration a degree of uncertain* as to reciprocal rights and obligations
which .,,.
I -3-
which deprived the P.ccaptance of the corqulsory jurisdictioo nf the Courto 'f
al1 prac"cic1 val-ue, the Court held that as Eeclarztions and their
alterations rade under Article 36 af the Statute had to be deposited wlth
the Sccretary-Venera i1t follow~d thet, when a case cas submitted to the
Court, it was alwclys sossible to escertcin rhhat were, ai that moment, the
reciprocel obl.iqation~ or" thePartiesin acco~dance wit9 their respective
Declarations. Althoirgh j-ims true thsi dtlria,g the intervsl bcttveen the
date of the notification to the Secretay-Genzml and its receipt by the
Par%ies to th8 Statute, there r~lght exist some elenient of uncertaintg,
mch uncei-tainty wns irrhcrent in the op.v_akt;ionof the systern of the Optional
Clause and d?d not affect the validitg of the conditioncontzined in the
Portuguese Declarntion. The Court nokerl tllat with r~~;asd 'toany degree
of uncertainty resulting from the right of Portugal to availitself at any
time of the Condikion in its Accep'cence, the position was substantialy the
IIme as that cyeaieci by the righk clairne by many Signatories of the Optional
o lause, iiiclr.udin-India, to teniiinzt& their Dec:Larations of Acceptance by
simple notifica$ian without nntice. 1% r~czlled th.%t India hati done so
on January ?th,1956, &en it notified che 5ecretar-y-kxrzl of the
denunciatioo nf its Declarailon of February Sth, 19.40 (relied upon by
Portugal in itsi:p>l.lcatiof n), which it simultaneously substituted a now
Declz.ration incorporatinr geçervations which were absent from its prcvious
Declaration, By doing so, India achieved in substznce the ob ject of the
hndition in Portugal' ç Ueclar-ation.
Ymreover, in thevicw of Lhe Cour$, there W~S no essential aiffsrence
with regard $0 the degree of uncertaink gct,ween s situation resulting from
right of' total denunciation and tiiût rc-sulting from the condition in the
Portuguv se qscla1-2tion whlchleit open the possibilitg of a partial
denun"¢iation. 'She Court fu-rther held that it was not possiirile to adrriitas
2 relevant 2ifferantizting factor th~t while in the czse of total
denunciation the deno~mcifig BtaLe could no longcr hvoke any ri&-~s accruing
under its Ileclarntion, jn the ct?seof a sertial denuncbtion under the terrns
of the Portugw~f: Declaration ,o~tugal cculd o'chwwise continue tu clah
the beneiits of its Acceptace. Tti~ princigle of reciprocity made it
possible for othar States including India to invoke rzeinst Portug~l al1 the
riqhts r.d?ichik -xi(=h.thu.; continue to clabm.
h third reasan for the allcged inuzlid.ity of the Por~ugueseConditicn
wes thatit off'ent'edagninst the basic principle of recfprocity underlying the
Op'cional Zlzuse, inasmuch as it claimed for Portugal a rightwhich in cffect
was denied to other Si2riatoïies &ose Dzclarc'tions didnot contain a siniilar
conditicn. The Court wzs unzble LO a.ccept this conLerition. It held that
if the position of 'ihe Partizs as regz.15dsthe exai-cise of their rights was in
mÿ way affected hy the unxvoidabl~ intérvzl bekween the receipt by the
Secretarj--Gen.cral or"thc as?rcipriute notification and its receipt or by the
other Signatoriest ,h* delay operatedoqgalJy in faveur of or a-gainst al1
Signatories cf theOptional Clause.
The Court also re'fused to acccpt the view b?iat iheLGondition in the
Portuguase Declaration was incoilsistew nkththe principleof reciprocity
inasmch as it rende~ed inopeya%ive thzt part of ps,ragraph 2 of Article
36 rdn:ich scf ersto Gha eci.,antailcof t!lc Oqtion::>L Gl;;,~sb-
relation tc States accepting Ifthe szr~c abl?gztiontt. Ii i~zs not necessarly
'chat :'the sme obligationH sliould bc irrevocably defined at the time of
acccptdncs for the entirc period of its duratlong that expression~hply
rneant no mrev thantI?e$ 2s bettieen the SLtates adhering to the ,Optional
Clause, each 2nd dl of tl~em wcre bound by such identic21 obligations
as..imight exist c?t an;rtine during wllich the acceyitance was mutuslly
'ainding.
As the Court fomd t113t the condition in the Portuguese Declaration
was not inconsisten tith t,he Statute, it was not necassari. for it ta
consider the poçitioil btrhcther, if it.mre invalid, its invalidlty wauld
affect the Declaration as a u~hole.
The .... ' The Court, t'riei? deal-t wi-t"ce Sccond C)b,jec.tionbased on the all-egation
-
thet as the iipplicetion wzs filed beforc Fori;ugall s acceptrace of the
Court s jusFsdiciion could be notif ied by the Secretanj-C-eneral to the other
Signzt clries, .the Piling oz thc ilpplicc,tion vio1;:ted thc equality, mtuallty
and rekiproclty ta which Tntiia was cntilled under the Options1 Clzuse and
luder the express condition conJ~ained in its Declardtian. 'he Court noted
that two queskions h~d to be considered: first,in filirq its Apnlicatio nn
the &y follo1,~ingthe dcposit of its DeCL~ration of Accepis.nce, did Parbugal
act in a mu~ncr contrary to the Statute; second, if not, did it thereby
violate any right of India under the Stat~~te or under itç Beclar&ion.
India maintainecl th; t bafore flling its iipplic~tioa Portugal ought
to have allo7,1redsv.ch -%Y?-od to elapse 2,swou.ld rcasonzbly have perrriitted
otiîer ~i~natoefe s oi Elle Gptional Ciause to reccive froc_ the Secretary-General
notification of the Portu:<uese Dvclaration.
The Court was im?blv tn ackcpt th:it contzntion. The c~ntractual
relation bct!+rcen the Pal-ties a:-d the com~ulsory jurisciiction of the Court
resulting theref rom are es+,ablished ''ipso Tactoanlà without special agreement
by the f?ct.of the mn~king of the ucclara.tion. R State accepting the
jurisdictio nf the Court mst cxpecttha-t an ADplicatiun .my be filed agajlist
it bcioiethe Court by s new declarmt State on the same day on which that
State deposit s its ?cccptancewith the Secretary-General.
@
India hnd cont ended t;hat acceptznce of ihe Court 's jurisdiction becme
effective only .whcn 't;heS~cre-hary-General had tr~lsr~etied n copy thereof to
the Parties. ne Couri held t;!<:the declersnt SLzte w,zs concern~d only
with the deposit of iCs De~l2~~~tion.w he hSec.retary-Gcneral 2nd was not
concarncd witil .t'ne51i.tyof the Secretaq-Gsnernl or the r~Enncr ai its
Mihnt . The Cowt covlo not re3.d intothe Optiond Clause the
reql.riremcnt that zn. in',ervs.l should elzyse subsequent ta tlie àeposit of the
Dec lnrdiioi~. &y such re-ircrilenG would intraduce ari elcrncntcf une ert ninty in-
to thc operztion of the Optional Cltluae spten.
As Xndia hnd not speciIied wh~t actUil right rihich she deriveuf. ron the
Stntute md the Liecl~~~ation heh been sdv2rsely affected byi the mannes of the
filing of -the lipplici,tion, the Cou1.t kr?sunable to disc~verwhat right hzd
in fzct tkue been violzied,
hving afrived c':thé coricivsion ti1r.tthe Appli¢ition was filed in n
mmner whlch t\~rncithar coritrary to the Statute nor ih vio16?tion of my
rightof Indin, the Coii1-Ldi.sniissed the Second Freliniinnry Objection.
O
C o:
The Gozirt then dczlt ivith the Faurth PrelMnery c3b.jvction which was '
nlso concerncd with the rizanncr in which the i=pplica£ion Qms filéd, .
India contended that h2~irl.g rezt.rdto the m?.ilncr in h~hich the
Aplication +ras filed, it h7.d been wlzble to mail itself on the basis of
reciprocity of the cmdltloh in the Portugucse Dzchration and to exclude
fmni the jurisdiction of the Coirrtthe dispute which 5~e.s thesubject
rmtter of the i!pplic~tii.~n. Bze Court~~rcQ- recalledwhat it hzci said
in dealin5 with the Second Oojectlon, in particuler that the Statute &d
nqt prescribe my interv5l be'clveee the clepasit of a Declaratio nf
iic~epton~e and the flling cif nn 1;pplicztion. On the Third Pralirninrry O'o,jec.bion xhich invoksd the absence of
,diplomtic nsgotiz.ti3ns prior to tha filingof the ~'kpnlication, the Court
held that a subntantial pak .of the exchmges of views betneen th6 Parties
prior -Co the filing of'SIE 1tpp1ic:tion w~5 devotedtc the question of
zccess to the enclaves, thni the corres?ondenc end noies laid before the
Cowt revealed tlie repcn~ed cornplaints of Portugal on accaunt of denial
oY transit fxilities; WC? that the corrcspondence st-iowedtkt negottz.t;ions
bad reacl-ied a dscdloc!r. ibssuming t!int l'!ïï.tic36, perasraph 2, of the
Statute bg re2erring to legal disputas,did rcqùire c definition of the
dispute through negotiatioast, lze condition had been camplied with.
Zn its Fifth @b.iectiori, Pndizrelied on iiresemztion in its own
Declzrationz of Acçeptance v~hich excludeo from tlie jurisdiction of the Court
disputes witLî rcgz-xi to yu.vstions r.d;r;l&-in'kern, tionel lm fzll
exclusivel wyithin the jurisdiction of '~17~Goverment' of India, and asserted
that tha f~vts and the lz+l consideraLions adducedbefare the Court did
not ~ermit the conclusion that thers was 2 rezsonzbly argu?-ble caze for tl-ie
cori,t;entionthxh the sub ject rmt ter of the dispute nes outside the exclusive
'a damvstic jurisdictio oqf India.
me Court 19oted thzt ,the fc:cts on which the Subissions of India wErc
bascd werv not 2dï~Ltted by Portugsi 2nd thLi. elucidation of tRose facts 2nd
theis legal consequùnccs i,vould involve an e,ya:frlii~atiof the prnctice of the
British, Indiai and Portuquese ~u-thorities in the rnatter of the right of
passage,in particulxr ta datcraine r~Izether thispractice shotea th& .the
Parties had emisa,ged this righi, as 2 question rzrhich according to international
1a.r WZS exclusively wlthL? the jurivdiction of the territorial srivereign, Al1
tlzese and shi23r qu-estions coilld not be exclmtnzd 2,ttthis prelir~nary stage
>;ithout pre judging the fileritsi 1lccordingl2-, the Cou~t decidedto jointhe
Fifth Ob jcctïon io the rrierits.
Fiaallg, in dezling cuith the Sixth Objection bised on the resesv.::tion
rztione ter,poris in the Lndim Deeleraticn limiting the Declarntion to
0
disputes arising efter Februaw Sth, 1930, with regard to situations or facts
subsequant to th~t date,the Court noted that ta ascertain the date on whlch
the &spu"s had znrisen Tt wnns neccssarg to exaine whether or not the
dispute wes only u,continu~,,tion of 2,discute on the right of passcrge which
had arisen before 1930. The Coui.t, having hemd conflicting arga~ents
~eg:~rding the n,:bure of the pssseze formerlg exercised wzs not in a position
. uo determine these tua questions 2dt this sta:;e.
iior did the Court have a< present sufi'icient evidence to ensble
ik tg pronouncc on the question whe&her the dispiite concernedsi-Lu,:tions
or facbspr;ior to 1733.' ::ccordingly it, joined the SMh Prelhinz+ry
0bj~:ction to the fiîmits,
The %a~qe, No%-cmber 26th, 1957.
- Judgment
Right of Passage over Indian Territory (Portugal v. India) - Judgment