Right of Passage over Indian Territory - Judgment

The following informatio rom the Registry of the
Internationa Court of Justice is communicate o the Press;

Today (12iipril 1960) the International Court of Justice
delivered its Judgment on the Meritç in the case concerning
Righk of Passageover Indim Territory (portugal x. ~ndia) .

This dispute was roferredto the Court bg an Application
f ZLed on 22 Dccember 1955. In that iippliçction, the Governent
of Portugal staead thatits territory in the Indian Penbnsda

included two enclavessurrounded by the territory of India,
Dadra and Naga~kvcli. It wzs In respect of the cornunications
between those enclaves and the coastal district of Daman, and
between each other, that the' question arose of a ~ight of
passage Ln favour of Portugzl thraugh IndiZn territory and of
a correlata-ve obligation bindhg upon India. The ilpplication
stated thatin July 1954 the Governeni; of India prevented
Portugal frm exercislng that righi of passage and that Portugal
was thus placed in a position in which it becme impossible for
it to exercise its ~ights of sovereignty over the unclaves.

Follovhg upon the Lpplication, the Court riras seisedof
six preljminary objections raised by thc Eovemzn-t of India.
By a Judgmenk gitren on 26 November 1957, the Court re jocted the

firstfour objections and joinedthe fifth and sixth objections
to the Merits.

By the Jud-nt giwn today, the Courk,:

(a) re jectcd the Fifth Prelhinary Ob jecilon tsy 13 votes
to 2,

(b) rejected the Sixth '~reliminary Ob jeciion bg 11 vates
to 4;

found, by Il votes to 4, that Portugal had in 1955. a
rlght (of passage over intemenhg indien territory between the

enclaves of Dadra md Nagar-heli and the caaakal district of
Daman 2nd bethrecn these enclaves, to the oAent nccessary for the
exercisc of Portugueso sovereigrity over the unclavcs sub ject
ta the regulation and control of Tndia, in respect of privatc
persons, civil officialsand goods In general;

Cd) found, by 8 votes to 7, that Portugal did not have in
1954 such a rlght of passage In resp~ct of armedforccs, armed
police and arms and mnunition;

le) fomd, by 9 votes to 5, that India had not acted
cqntrary ta its obligations resulting from fo~ugal!sright of
passage. in rsspect of privatepersons, civil officials and goods

in gcncral,

The .... The President and Judges Basdcvznt, Badavri, Kojevnikovand
Spiropoülas appended Dcclarations to the Judgr,ent of the Court .
Judge Wellington Koo appcnded a Separate Opinion, Judges
Wjnia~skl and 3adaw-i appended a JointJlissanting Opinion.

Judges Amand-Ugon, Morena Quintana and Sir Percy Spender, and
Judges ad hoc Ckagla and Fernandes, appendcd Dhsenting Opinions.

In its Judgqent the Court rcferred to the Subrnisslons filed

by Portugal which in -Che ff6s-b place requcsiud the Court to
adjudge and declare that e right of passzge wes posscsscdby
Portugal and must be respectcd by India;' thisrightwas introked
by Portugzl only to thc cdent neccssaq for the cxerck of its
sovercipty ovcr the enclavas, and it waç not contended that passage
w~s eccorflpanicd by eny immmity and made ¢lz~.r th?-.tsuch passage
remained sub ject t o.tbc regulatlon and control of Indie, ~rhich
must be. exerçised in good faith, hdia bcing mdcr an obligation
not to przvont the transit necessary for the cmrcise of Portuguese
sovcreignty. The Court thcn considered the date with rcforeace

to whichit must ascertain whother the right invokcd existed or
did not exist, The questionas to the existence of a right of
passagehaving becn put to the Court In respsct of the dlspute
which had ariscn wlth mgaind to obstacles piaccd by Indiain the
way of passage, It F~S th^ BTC af the creation of those' obstacles
that must bc aelccted 2s the standpoint fsoiriwhich to ascertajn
whzthar or not such a right existed; the selectian of that d?-te
wauld lezve open the argumznts of lndia regarding the subsequ~nt
lapse ofthe right of passzge.

Portugal nexk askcd the Court to adjudge and declare that
Indiahad not complied with the obligations incumbznt upon it
by virtuo of the rightof passage, But the Co& ppintsd out
th~t it hsd not been asked, eithcr in the f'ipplication or the
final Subri~fssi~ns of the Parties, to dccide whethoror not Pndiels
attitude towards 'chose who hzd instigated the overthrow of
PorLuguese authority at Dadra and Nagar-iheli in July and'fagust
1454 censtltuted a breach of the obligation, said to be b&ding
upon it under gencral intemationel lzw,to adopt suitzblo measures
Co prevent the incursion of subversiveelementsintothe territory

of enotker State.

Turning thcn to the future,the Submissionsof Portugal
rzquested the Court ta deçide thet Indiamust and the rncesures
by tvhich it opposed the exercise of the righ-t of passage or, if
thc Court should be of opinion that therd ~hodd bv a tamporary
suspension of the right,to hald thet that suspension shodd end
as soon as the cours? of evcnts disclosed that the justification
for the suspension had disappcnred. Portugal had pr~viou'sly
irivited the 'Court to hoLd that the arguments of Jndia coiicerning

itsright to adopt an attitude of neu-trality, the appl-ics-tion of
the United Nations Charter and the ewstence Un the encl?.ves of a

%-%
local .,.,local govemnent, werc without foundation. The Court, hovrzver;

considered that it wasna part of its judicial function to declare
in the operative part of its Judanent that wy of thosc arguments
ms 01-w2.s not well fowidcd.

Before proceeding to the consideratio nf the Merits, the
Court had to asceriah rdxthcr it had jurisdiction .todo so, a,
jurisdict ion ~lt3içhIndia had exprc ssly contestad.

In its Fifth Prelimlnexy Objection the Governent of India
relied upon the rcsemation in its Declaratlon of 28 Fobmary 1940
accepting the jurisdiction of the Court, which excluded from that
jurisdictiad nisputes tdth ~gard to questions which by
international law faU_ exclusively wlthin thc jurisdiction of 1ndia,
The Court pointed out that in the course of the proceedbgs both

Parties had taken their stand on growlds whichwere on the pl~ne
of internation31 law, and hadon occasion cxpressly said so. The
fifth objection cauld not therefore be uphald.

The SUcth Preliminary Objection likcwise relcied to a
limitatton in the Declaration of 28 Fcbruary19k0, Inàîa, ~iich
had acceptcd the jurisdiction of Lhe Court "over all disputes
arisjng after Febmizry 5th, 1930, ~6th regard to situations or
facts sutsscquent to the same dztcI1, contended that the dispute
did not satisfycither of thesc two conditions, As to the first
condition, the Court pointed out that the dispute could not ham

arisen until al1 its constituent elernents had corne hta existence;
among thcse were the obstacles which Indiawas allegad to havo
placed In the way of exercise of passzgc by Portugal in 1954;
even if only that partof the dispute rclating ta the Tortuguese
clah to a ri&t of passagewere to be considered, certain
incidents had occwred bcfore 1954, but they had not led the
Parties to adopt clcarly-defined lcgal positions as agahst each
other; accordingly, thcre was na justification for saying that
the disputoarose before 1954. ~LSto the second condition, the
Pcrmanenk Cowt of Internetional Justice had Ui 1938 drawn a

distinction between the situations or f zcts which constituted
the source of the rights clair;iad by one of the i'arties, and the
situstions or facts which wcre the sourceof the dispute. Only
the latter wsm to be takcn into account for the purpose of applying
the Doclaration. The dispute submitted to the Cmrt was one
with regard to the situqkion of the enclaves, whichhad given
rise to Portugalfs clairn to a riat of passageand, at the same
the, with regard to the fact s of 1954. wilich Portugd advanced
as infringements of that right; it was from al1 of this that
the disputearose, and thiswhole, whatover may have been the
earlier ariginof one of its pal-tç, cgme into existenceonly after
5 Febnt7r-y 1930. The Cou& nad not beon askcd for ary findLng

whatsozver with regard to the past prio~ to that date; it ~qias
therefore of opinion that the sjxth objection shouid not be upheld
and, consequcntly t,at it had jurisdiction,--

. f
r;
1

- 4'- '

On the merits,India had contended in the first place that the
right of passage claimedby Portugal rvas too vague and contradictory
to enable the Court to pass judgment ipon it by the applicationof the
legalmiles enwaerated in Article 38 (1) of the Statute. There was no
doubt that the day-to-dayexerciseof the right might give rise to

delicate questionsof application but that was not, in the view of the
Court, sufficient pound for holding that the rightwas not susceptible
of judicialdetemination.

Portugal had ~elied on the '~reat~ of Poona of 1779 and on aanada
(decrees) issued by the Naratha mlcr in 1787 and 1785, as having
conferred on Portugal sovereiety over the enclaves with the right
of passage to then; India had objected thatwhat nas alleged to be

the Treaty of 1779 was not validly entered into and never becme in
1aw a treaty binding upon the IirSara-thas. The Court,however, found mat
the Muathas did not at any tirne cast any dei~bt upon the validiQ or
bindingcharacter of the Treaty. India had further oontendedthat the
Treaty and the two sanads did no% operata to transfer sovereignty over
the assignedvillages to Portugal but only conferred, with respect to
the villages, a revenue gra~t. The Caurt nas unable to conclude from

'anexamination of the various texts of the Treaty of 1779 that the 0
lailgnage employedtherein mas intendedto transfer sovereignty; the
expressions used in the two sanads,on the other hand,esta'blished
that what mas granted to the Portuguese was only a revenue tenure
called a Jagir or saranjam,and not a single instancehad been brought
to the notice of the Caurt in mhich such a grant had 'been constnied
as amounting to a.cession of sovereignty. There eould, therefore, be
no questionof any enclave or of, any righ-t; of passagefor ,the purpose

of exeraisingsovereigntyover enclaves.

The Court found-that the situationundervient a change mith the
advent of the British as sovereign of that part of the country In
place of the Idarathas: Porturnese sovereigntyover the'villages had
been recognized by the British in fact qnd by implicationad had
subsequentlybeen tacitly recogmized,by India. As a cansequence the
villageshad acquiredthe character of Porhuguese enclaves nithin

Indian territory and there had developed between the Portuguese md
the territorialsovcreign with regard to passage to the enclaves a
prac$ice upon mhich Portugal relied for the purpose of establishing
the xight of passage claimed by it, Xt had been objected on behalf 0
of Ind5a th&t na local custoin coula be established betv~een only tao
States, but the Court found it difficult Go see wky the number of
States .between which a local custom rnight be established on the
basis of long practice muçt necessarily be larpr than two.
..

If was common ground between the Parties that during the British
and post-~ritish periods the passage of privatepersans and civil
officiais hsd not been subject to any restrictions bsyond routine
control. Merchandise other khan arms and munition had also passed
freelysubject only,at certain times, to eustoms regulations &rd
suchregulation md çontrolas were necessitatedby considere;tLom
of securityor revenue. The Court therefore concludedthat, mith
rega~d to privatepersons , civil. officials and goods &I general

there had existed 9 constantand uniforrn practice allowing free
passage between Daman and the enclaves? it was, in viem of alI. the
circustances of the case, satisfied that that practice had been
wcepted as law by the Parties and had aven riseto a right md
a correlativeobligation.

Ba ,...

..

O As regards armed forces, amed police and axms and mwiltion,
the po,sition was different.

'It app~ared that, duringthe British and post-British periods,
Portuguese armed forces ad armed police had not passed betwsen
Daman and the enclzves as of right, and thet after 1878 such passage
could only take place with previoua suthoriaation by the British and
later by Tndia, accorded either under a reciprocal arrangement
already agreed to, or in individual cases; it had been asgued that
that permission was alnags grmted, but there was nothing in the

record 50 showthat gant of permission was iricun73ent on the British
or on India as an obligntion.

A treaty of 26 December1878 between Great Britüin and Portugal
had laid down that the a~med forces of the tv~a Goverments should nat
enter the Indian dominions of the other, except in specifled cases or

in consequence of a formal requestnadc by the party desiring such
entry. Subsequentcorrespondence showcd thüt this provision was
applicable to passage between Danan and the enclmes r it had been
argued on behalf of Portugalthat on twenty-three occasions armed
forces crossedBritishterritory betmeen Dmm md thc.enclczves ~?ithout
obtaining permission; but in 1890, the Goverment of Bombay had
formarded a cornplaint to the effect that umed men in the service
in the hzbit of paçslng without
of the Portuguese Government were
formal request through a portion of British territoryen route from
Daman to Magar-Aveli mhich would appear to constltute a breaeh of
the Treaty;an 22 Decernbes, the Govenor-GeneraL of Partupese India
had replied: "Portuguese troops never cross Britishterritory
without previoua permission", and the Secretary-Generao lf the
Governmentof Portuguese India stated on 1 May 1891: "On the

part of this Goverment injunctions will be given for the strictest
observanceof ... the Tre~tg". The xequirement of a formalrequest
before passage of armed forces could take place had been repeated in
an agreement of 1913. With regard to armed police, the Treaty O£
1878 e~d the Agreement of 1913 had regulated pcssap on the basis
of reciprocity, and ayiagreement of 1920 had provided that armed
police beloxv a certain raak should not enter the territory of the

other party without consentpreviouslyebtainedgfinally,an
agreement of 1940 concerningpassageof Portuguese ârned police
over the road fromDaman to Nagar-Avelihad provided'that,if the
party did not exceed ten in number, intimationof its passage
should be given to the British authorities mithin twenty-four
hours, but that, in other cases, "the existingpractice shouldbe
followed concurrence of the British authori ties should be

obtained by pxior notice as heretof~re~~.

As regards armç, and ammunition, the Treaty of 1878 and rules
framed under the Indian Arrns Act of 1879 prohibited the importation
of arms, munition or militarystores £rom Portuguese India and
itsexport to FortufleseIndia without a special licence. Subsequen-t
practice ahowed thnt this provision applied to tr~nsit between Doman
2nd the enclaves,

The findingof the Court that the practice established bettwen
the Parties had required for the passageof armed forces, arrned
police md ms and mnunition the permission of the British or
Indim authorities, rendered it unnecessary for the Court to
determine whether or not, in the absence of the practice that
actually prevailed, general international custom or general principles

of law recognized by civilized nations, v~hich had also been invoked byPortugal, couPdhave been reliedupan by Portugal in support of its
claim to a right of passage in respect of these categories, The
Court was dealing vïith a cancrete case ha~irg specialfeatures:
historicallythe case went back 'to a period wken, and related to
a segion in which, the relations between neighbouring States were

not regulated by preciselyformulated rules but were governed
largeby by practicei findinga practiceclearly eseablished between
two States, which was accepted by the Parties as governing the
relations between them, the Court niust attributedecisive ef fect to
that practice, The Court was, therefora, of the viem that no right
of passage in favour of Portugal involving a correlative obligation
on Tndia had been established in respect of armed forces, armed
police and arms and ammunition.

Having found that Portugalhad, in 1954, a right of passcge
in respect of privateperçons, civil officials md goods in general,
the Court lastly proceedodto consider mhether India had acted
contrary to its obligation resulting from Portugal's ~ightof
passage in respect of any of these categorics. Portugal had not
contended that India bad acted contrary to thatobligation before
July 1954, but it complained that passzge was thereafter denied to
Portuguese nationals of European origin,to native Indian Portugaese

in the employ of the Portuguese Goverment and to a delegationthat
the Governor of Daman proposed, in July 1954?' to send to Nagar-Aveli
and Dadsa. The Court found that the events which had occurredin
Dadra on 21-22 July 1954 md which had sesultedin the overlhror o~f
Postugueseauthorityin that enclave kad created tension in the
s,urrounding Indian district ; havingregard to that tension, the
Court was of the vien thxk India'srefusal of pxsage was covered
by its power of regulation and control of the right of passageof

Portugal.

For these reasons, the Court reached the findings indicated
above.

The Hagw, 12 April. 1960