                     100

                               JOINT DISSENTING OPINION OF JUDGES XUE,
                                           GAJA, BHANDARI
                                  AND JUDGE AD HOC ORREGO VICUÑA

                                                     Introduction

                       1. According to the view of the majority of the Members of the Court,
                     by 1954 some kind of tacit agreement had come into existence between
                     Peru and Chile in order to define part of the lateral boundary between
                     their respective maritime zones. However, the elements of that agreement
                     have not been clearly identified. There is no indication as to when and
                     how such an agreement was supposed to have been reached.
                       2. With regard to maritime boundaries, the only relevant agreement
                     that was concluded between Peru and Chile before 1954 was the Santiago
                     Declaration of 1952. Although this Declaration did not expressly define
                     the boundary between the maritime zones generated by the continental
                     coasts, it contains important elements of which any interpretation could
                     not afford to lose sight, and which would give a more solid basis to the
                     conclusion reached by the majority on the existence of an agreed bound-
                     ary. This approach does not only have theoretical significance. While the
                     majority labours to argue in favour of the idea that the agreement between
                     Peru and Chile covers a distance of 80 nautical miles from the continental
                     coast, the Santiago Declaration clearly indicates that the seaward end of
                     the boundary extends to 200 nautical miles.

                                          The 1952 Santiago Declaration

                        3. The Declaration on the Maritime Zone is a treaty, which was signed
                     at the Santiago Conference on 18 August 1952 by the representatives of
                     Chile, Ecuador and Peru (hereafter “the Santiago Declaration”, or “the
                     Declaration”), then approved by the respective Congresses and later regis
                     tered with the UN Secretary‑General by a joint request of the parties.
                     During the proceedings, Peru had expressed doubts on the legal nature of
                     the Santiago Declaration as a treaty, but later accepted this characteriza-
                     tion.
                        4. The Santiago Declaration contains a specific provision on the delimi
                     tation of maritime zones. Paragraph IV of the Declaration states :
                             “In the case of island territories, the zone of 200 nautical miles shall
                           apply to the entire coast of the island or group of islands. If an island

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                           or group of islands belonging to one of the countries making the
                           declaration is situated less than 200 nautical miles from the general
                           maritime zone belonging to another of those countries, the maritime
                           zone of the island or group of islands shall be limited by the parallel
                           at the point at which the land frontier of the States concerned reaches
                           the sea.”
                     This provision explicitly refers only to the delimitation between maritime
                     zones generated by islands and those generated by continental coasts. It
                     first states that islands are entitled to a maritime zone extending for
                     200 nautical miles around their coasts. It then considers the case where an
                     island or a group of islands belonging to one State is situated at a distance
                     of less than 200 nautical miles from the general maritime zone of another
                     State. This would create an overlap between maritime zones belonging to
                     two different States. In order to harmonize these claims, the Declaration
                     adopts the criterion of cutting off the maritime zone pertaining to the
                     island or the group of islands when it reaches the parallel passing through
                     the point where the land frontier meets the sea (el paralelo del punto en que
                     llega al mar la frontera terrestre de los estados respectivos).
                        5. In paragraph IV the criterion for delimiting one general maritime
                     zone from another such zone has not been explicitly set forth. However,
                     when paragraph IV refers to an island or a group of islands at a distance
                     less than 200 nautical miles from the general maritime zone of another
                     State, it implies that some criterion has also been adopted for delimiting
                     that general maritime zone, because it would otherwise be impossible to
                     know whether an island or a group of islands is situated at less than
                     200 nautical miles from that zone.
                        6. Under the rules of treaty interpretation, treaty clauses must “be con-
                     strued in a manner enabling the clauses themselves to have appropriate
                     effects” (Free Zones of Upper Savoy and the District of Gex, Order of
                     19 August 1929, P.C.I.J., Series A, No. 22, p. 13). Every term of a treaty
                     should be given meaning and effect in light of the object and purpose of
                     the treaty. As the Court has said in the Territorial Dispute between Libya
                     and Chad, the principle of effectiveness constitutes “one of the fundamen-
                     tal principles of interpretation of treaties” (Territorial Dispute (Libyan
                     Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 25, para. 51 ;
                     see also Corfu Channel (United Kingdom v. Albania), Merits, Judgment,
                     I.C.J. Reports 1949, p. 24). Paragraph IV of the Santiago Declaration not
                     only establishes the maritime entitlement of islands, but also provides the
                     delimitation criterion in case their entitlement overlaps with that of the
                     coastal entitlement of another contracting State. The phrases in the para-
                     graph referring to “the general maritime zone belonging to another of
                     those countries” and determining that the maritime zone of islands “shall
                     be limited by the parallel at the point at which the land frontier of the
                     States concerned reaches the sea” have a direct bearing on the islands’
                     entitlement as well as on the lateral boundaries between the parties.

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                        7. It seems logical to infer from paragraph IV that the parallel passing
                     through the endpoint of the land frontier on the continental coastline
                     between adjacent States also marks the boundary between the maritime
                     zones relating to the respective continental coasts of the same States. For
                     instance, supposing that State A lies north of State B, it would make little
                     sense for the maritime zone generated by an island of State A to be
                     restricted to the south by the parallel running through the endpoint of the
                     land border with State B if the maritime zone generated by the continen-
                     tal coast of the same State A could extend beyond that parallel. On the
                     other hand, should the boundary between the maritime zones generated
                     by the continental coasts run north of the parallel, disproportionate
                     weight would be given to some small islands of State A if that boundary
                     were displaced because the maritime zone of these islands had to reach
                     the parallel running through the endpoint of the land border.

                        8. The minutes of the Juridical Affairs Committee of the Santiago
                     Conference give some support to the above interpretation. The records
                     (Memorial of Peru, Ann. 56) note that a proposal of the Ecuadorian dele
                     gate, Mr. Fernández, was unanimously approved. He had suggested that
                     the Declaration “be drawn on the basis that the boundary line of the
                     jurisdictional zone of each country be the respective parallel from the
                     point at which the borders of the countries touches or reaches the sea” (el
                     paralelo respectivo desde el punto en que la frontera de los paises toca o
                     llega al mar). There was a concordant view among all the negotiators on
                     this proposal (Todos los delegados estuvieron conformes con esta
                     proposición). Thus, they all agreed that the parallel would mark the lat-
                     eral boundary between the maritime zones of the three States. Even if this
                     view was reflected only in part in the final text, there is no indication in
                     the preparatory work that the negotiators had changed their view on the
                     boundary running between the maritime zones generated by the respec-
                     tive continental coasts.
                        9. Moreover, given that the parties publicly proclaimed that they each
                     possessed exclusive sovereignty and jurisdiction over the sea along the
                     continental coasts of their respective countries to a minimum distance
                     of 200 nautical miles from their coasts, and that they provided explicitly
                     in the Santiago Declaration that the islands off their coasts should be
                     entitled to 200‑nautical‑mile maritime zones, it is unpersuasive to draw
                     the conclusion that they could have reached a tacit agreement that their
                     maritime boundary from the coast would only run for 80 nautical
                     miles, which is clearly contrary to their position as stated in the Santiago
                     Declaration.
                        10. One may assume that, while there was a need, in order to avoid an
                      overlap of conflicting claims, to select a criterion for delimiting the mari-
                      time zones of islands which were in principle entitled to a zone extending
                      to 200 nautical miles from their entire coasts, there was a lesser perceived
                      need to state a criterion for delimiting the maritime zones generated by
                      the continental coasts. This is because these maritime zones were argu-

                     103

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                     103 	               maritime dispute (joint diss. op.)

                      ably based on the method of “tracé parallèle”, with the outer limit reflect-
                     ing the shape of the coast.
                         11. The 1947 Declaration of the President of Chile viewed the external
                     limit of the claimed maritime zone as being constituted by “the math
                     ematical parallel (paralela matemática) projected into the sea at a distance
                     of 200 nautical miles from the coasts of Chilean territory”, while the mari
                     time zone generated by islands extended to a “projected parallel to these
                     islands at a distance of 200 nautical miles around their coasts”. The Peru-
                     vian Supreme Decree, which was enacted later in the same year, consisted
                     in a claim over a maritime zone between the coast and an imaginary line
                     at a distance of 200 nautical miles measured from the coast following the
                     line of geographic parallels (siguiendo la línea de los paralelos geográfi
                     cos), while for the islands the area was meant to reach a distance of
                     200 nautical miles from their respective coasts.
                         12. According to the Chilean declaration, the external limit of its
                     maritime zone ran as a parallel to the continental coast at a distance
                      of 200 nautical miles westwards ; on the basis of the Peruvian Supreme
                     Decree, the line was composed of the points situated at the end of seg-
                      ments of a length of 200 nautical miles on the parallels starting from
                      the various points on the continental coast. The resulting extension of the
                      claims of the two countries was identical. In line with this method, the
                      claims to maritime zones in the Santiago Declaration could be viewed as
                      not extending beyond the parallels passing through the endpoint of the
                      land border on the continental coastline. It should also be noted that the
                      application of this method for defining the maritime boundary would not
                      have required any complex cartographic exercise.

                        13. The Peruvian Petroleum Law of 1952 defined the seaward limit of
                     the continental shelf as an imaginary line at a constant distance of
                     200 nautical miles from the low‑water line along the continental coast.
                     Peru argues that this statute and the similarly worded 1955 Supreme Reso
                     lution defined the external limit of the relevant zone on the basis of the
                     “arcs‑of‑circles” method, considering the distance from any point of the
                     continental coast. However, the wording of the Peruvian statute and that
                     of the Supreme Resolution do not necessarily imply the use of this
                     method. They are not inconsistent with the application of the method of
                     “tracé parallèle”, which is also based on the idea of points at a “constant
                     distance” from the continental coast, taking into account the point of the
                     coast situated on the same parallel.

                       14. Supposing Peru indeed had the arcs‑of‑circles method in mind at
                     that time, it would immediately have faced the situation of an overlap
                     between its claim and that of Chile concerning their general maritime
                     zones. This would have been much more significant than the overlap of
                     the maritime areas generated by islands with the general zone. In fact,
                     there is no single document in the records before the Court showing that
                     this issue was envisaged at the Santiago Conference. Moreover, Peru, as

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                     104 	              maritime dispute (joint diss. op.)

                     indicated in its Note No. 5‑20‑M/18 addressed to the Minister of Foreign
                     Affairs of Panama by the Peruvian Embassy in Panama on 13 August 1954
                     (Counter‑Memorial of Chile, Ann. 61), consistently held that its position
                     on its maritime zone was based on three instruments : the 1947 Supreme
                     Decree, the 1952 Petroleum Law and the 1952 Santiago Declaration. If
                     Peru had ever envisaged the arcs‑of‑circles method, it should have raised
                     its concern over the potential overlapping claims with Chile and reserved
                     its position on maritime delimitation. In view of all the evidence before
                     the Court, Peru did not do so until 1986 and gave expression to such
                     method only in its Baselines Law of 2005.

                        15. It is also significant that the memorandum of 2000 by the Peruvian
                     Navy concerning the United Nations Convention on the Law of the Sea,
                     annexed to a letter of the Minister of Defence to the Foreign Minister,
                     criticized the 1952 Petroleum Law, as well as the 1955 Supreme Reso
                     lution, precisely for having adopted the method of “tracé parallèle” (ibid.,
                     Ann. 189).

                        16. One may further consider that in 1952 the issue of delimitation
                     between adjacent States was not given the importance that it has acquired
                     in recent times. The attention of the three States parties to the Santiago
                     Declaration was mainly directed at asserting their 200-nautical-mile pos
                     ition towards those States which were hostile to such claims (see para-
                     graphs II and III of the Declaration). It is true that Peru at that time
                     could not foresee that the subsequent development of the law of the sea
                     would render the “tracé parallèle” method unfavourable to itself, but that
                     is a separate matter. What the Court has to decide in the present case is
                     whether Peru and Chile did or did not reach in the Santiago Declaration
                     an agreement on the maritime boundary.
                        17. According to paragraph II of the Santiago Declaration, the claims
                     of Chile, Ecuador and Peru referred to a zone that would extend to a
                     minimum of 200 nautical miles from their coasts (hasta una distancia
                     mínima de 200 millas marinas desde las referidas costas). While these
                     claims could hardly find a basis in customary international law at the
                     time they were made, a delimitation could be agreed by the three States
                     even with regard to their potential entitlements. This was arguably done
                     by the Santiago Declaration.

                       18. This interpretation finds support in the subsequent agreements
                     concluded between the parties to the Santiago Declaration.

                     The 1954 Agreement relating to a Special Maritime Frontier Zone

                       19. In December 1954, the three parties to the Santiago Declaration
                     adopted in Lima six additional legal instruments. These instruments fur-
                     ther shed light on the object and purpose of the Santiago Declaration.

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                           20. The most relevant of these instruments is the Agreement relating to
                        a Special Maritime Frontier Zone done on 4 December 1954 (hereafter
                        “the 1954 Agreement”, or “the Agreement”). According to its final clause,
                        the 1954 Agreement constitutes an integral and supplementary part of the
                        Santiago instruments, including the Santiago Declaration.
                           21. Under the 1954 Agreement, the three parties decided to establish a
                        special zone extending for 10 nautical miles on each side of the maritime
                        frontier between the adjacent States. Paragraph 1 of the Agreement pro-
                     vides that “[a] special zone is hereby established, at a distance of 12 naut
                     ical miles from the coast, extending to a breadth of 10 nautical miles on
                     either side of the parallel which constitutes the maritime boundary
                     between the two countries”. On the eastern end, the special zone started
                      at 12 nautical miles from the coast, while its western seaward end was left
                      open without any defined limit. In order to maintain the spirit of
                      co‑operation and unity among the countries signatories to the Santiago
                       instruments, it was provided that “innocent and inadvertent violations of
                       the maritime frontier between adjacent States” in the special zone by small
                       fishing boats that did not have sufficient knowledge of navigation or
                       necessary instruments to determine accurately their position on the high
                        seas were not to be subject to penalties. Such special measure, however,
                        was not to be construed as recognizing any right of the wrongful party
                        to engage in fishing activities in the said special zone.

                        22. In order to establish such a tolerance zone, it is apparent that the
                     existence of a maritime boundary between the parties was a prerequisite ;
                     otherwise it would have been impossible for the parties to determine
                     which acts constituted infringements or violations of the “waters of the
                     maritime zone”. In identifying the maritime frontier between the parties,
                     paragraph 1 of the 1954 Agreement explicitly refers to “the parallel which
                     constitutes the maritime boundary between the two countries”. The defi-
                     nite article “the” before the word “parallel” indicates a pre‑existing line as
                     agreed on by the parties. As noted above, the only relevant agreement on
                     their maritime zones that existed between the parties before 1954 was the
                     Santiago Declaration. Given the context of the 1954 Agreement, the par-
                     allel referred to can be no other line than that running through the end-
                     point of the land boundary, i.e., the parallel identified in the Santiago
                     Declaration.
                        23. The minutes of the Lima Conference leave little doubt as to the
                     relationship between these two instruments. The minutes of the First Ses-
                     sion of Commission I of the Lima Conference dated 2 December 1954,
                     which were adopted only two days before the 1954 Agreement was con-
                     cluded, contained a statement by the Ecuadorean delegate who agreed,
                     instead of including it in the Agreement itself, to record in the said min-
                     utes the understanding that “the three countries deemed the matter on the
                     dividing line of the jurisdictional waters settled and that said line was the
                     parallel starting at the point at which the land frontier between both
                     countries reaches the sea”. Considering the contextual coherence between

                     106

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                     the Lima and Santiago Conferences, the 1954 Agreement could not have
                     possibly led to the conclusion that Peru and Chile had tacitly agreed on a
                     maritime boundary that is much shorter than that agreed among the par-
                     ties to the Santiago Declaration. Ecuador’s clarification of “the dividing
                     line of the jurisdictional waters” as the parallel identified in the Santiago
                     Declaration may be taken as a further confirmation that the maritime
                     boundary would run up to 200 nautical miles along that parallel.

                        24. The 1954 Agreement has a rather limited purpose, only targeting
                     innocent and inadvertent incidents caused by small vessels. It does not
                     provide where, and with regard to what kind of fishing activities, larger
                     vessels of each State party should operate. Logically, ships other than
                     small boats referred to above could fish well beyond the special zone, but
                     within the limits of the maritime frontier between the adjacent States.
                     Moreover, the parties’ enforcement activities were not in any way con-
                     fined by the tolerance zone. In the context of the Santiago Declaration,
                     by no means could the parties to the 1954 Agreement have intended to
                     use the fishing activities of small vessels as a pertinent factor for the deter-
                     mination of the extent of their maritime boundary. Should that have been
                     the case, it would have seriously restrained the potential catching capacity
                     of the parties to the detriment of their efforts to preserve fishing resources
                     within 200 nautical miles, thus contradicting the very object and purpose
                     of the Santiago Declaration. The fact that the seaward end of the special
                     zone is not specifically mentioned in the 1954 Agreement and the fact
                     that, while the parties’ fishing activities greatly expanded in the ensuing
                     years, the 1954 Agreement is still in force support the above interpret
                     ation.

                        25. There is a distinct difference between the maritime zone that each
                     party claims under the Santiago Declaration and the special zone under
                     the 1954 Agreement. The latter is drawn by the parties to serve a particu-
                     lar purpose, which has nothing to do with the scope of the former. The
                     only element that applies to both zones is the parallel that serves as the
                     maritime boundary of the parties : the parallel that divides the general
                     maritime zones and serves as a reference line for the special zone. Given
                     the object and purpose of the 1954 Agreement, it is rather questionable to
                     construe this limited‑purpose agreement as limiting the maritime bound-
                     ary to the extent of the inshore fishing activities as of 1954. This construc-
                     tion of the Agreement is neither consistent with the object and purpose of
                     the Agreement, nor with the context in which it was adopted.

                       26. The purpose of the 1954 Agreement is to maintain the maritime
                     order in the frontier area. This indicates that the parties had not only
                     delimited the lateral boundary of their maritime zones, but also intended

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                     to maintain it. Notwithstanding the tolerance shown towards the small
                     ships of each other, the Agreement clearly states that the parties do not
                     recognize any right arising from such infringing acts caused by small
                     ships in their respective maritime waters, which means that the rights of
                     each party in the general maritime zone are limited by the maritime
                     boundary. In establishing the special zone, each party committed itself to
                     observe the lateral boundary, which was only confirmed rather than
                     determined by the parties in the 1954 Agreement.

                              The 1955 Protocol of Accession to the Declaration
                                             on “Maritime Zone”

                       27. In addition to the 1954 Agreement, the adoption of the Protocol of
                     Accession to the Declaration on “Maritime Zone” of Santiago done at
                     Quito on 6 October 1955 by the three parties (hereafter “the 1955 Proto-
                     col”, or “the Protocol”) is also significant. Even if it did not enter into
                     force, the Protocol offers evidence of the nature and extent of the mari-
                     time boundaries between the parties to the Santiago Declaration.

                        28. When the Santiago Declaration was opened to other Latin‑American
                     States for accession, the parties reiterated in the Protocol the basic principles
                     of the Santiago Declaration. In this regard, it is worth noting that on the
                     terms of accession the Protocol omitted paragraph IV of the Santiago
                     Declaration and explicitly excluded its paragraph VI from the scope of the
                      Protocol. The Protocol underscored that, at the moment of accession,
                           “every State shall be able to determine the extension and form of
                           delimitation of its respective zone whether opposite to one part or to
                           the entirety of its coastline, according to the peculiar geographic con-
                           ditions, the extension of each sea and the geological and biological
                           factors that condition the existence, conservation and development of
                           the maritime fauna and flora in its waters”.
                        29. This passage from the Protocol shows that at the time of the con-
                     clusion of the Santiago Declaration, notwithstanding their primary con-
                     cern with their 200‑nautical‑mile maritime claims, the parties did have the
                     issue of maritime delimitation in mind, albeit as a less significant ques-
                     tion. It also illustrates that the parties did not envisage any general rule
                     applicable to delimitation and that paragraph IV was a context‑specific
                     clause, applicable only to the parties to the Santiago Declaration.

                       30. The Protocol reaffirmed the parties’ claims to their exclusive juris-
                     diction and sovereignty over maritime zones extending to 200 nautical
                     miles, including the sea‑bed and subsoil thereof. As a legal instrument
                     adopted by the parties subsequent to the 1954 Agreement, this Protocol
                     offers an important piece of evidence that disproves any tacit agreement

                     108

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                     between Peru and Chile that their maritime boundary would run only up
                     to 80 rather than 200 nautical miles along the parallel passing through the
                     point where the land frontier meets the sea.

                           The 1968 Arrangement on the Installation of Lighthouses

                       31. In 1968, Peru and Chile agreed to install, and subsequently indeed
                     installed, two leading marks (or lighthouses) at the seashore near the first
                     land marker, Boundary Marker number one (No. 1) (see the Document
                     of 26 April 1968 adopted by the Parties, hereafter “the 1968 arrange-
                     ment”). One lighthouse was to be built with daylight and night signaling
                     near Boundary Marker No. 1 on Peruvian territory, while the other,
                     1,800 metres away behind the first mark in the direction of the parallel of
                     the maritime frontier, was located on Chilean territory. As was stated in
                     the 1968 arrangement, the object of the installation was to make the light-
                     houses visible from the sea so as “to materialise the parallel of the mari-
                     time frontier originating at Boundary Marker number one (No. 1)”.

                       32. Apparently, the installation of the two lighthouses was designed to
                     enforce the maritime delimitation between the Parties. From the corres
                     pondence between the Parties on this matter and the text of the
                     1968 arrangement, it is clear that the Parties intended to ensure that with
                     the facilities of the lighthouses, ships would observe the maritime bound-
                     ary between the two countries.
                       33. More importantly, by locating the exact positions of the light-
                     houses the Parties clarified their understanding of the phrase in para-
                     graph IV of the Santiago Declaration : “the parallel at the point at which
                     the land frontier of the States concerned reaches the sea”.
                       34. Even if done for a limited purpose, the installation of the two light-
                     houses further confirms that this parallel constitutes the lateral boundary
                     between Peru and Chile. Consistent with their position taken at Santiago,
                     the boundary along the parallel that is materialized by the lighthouses on
                     the territories of Peru and Chile runs for 200 rather than 80 nautical
                     miles.

                                                    Conclusion

                        35. The text of paragraph IV of the 1952 Santiago Declaration implies
                     that the parallel that passes through the point where the land frontier
                     reaches the sea represents the lateral boundary of the general maritime
                     zones of the Parties, which, on the basis of the Parties’ maritime claims as
                     pronounced in the Santiago Declaration, extends for 200 nautical miles.
                     Some subsequent agreements concluded between the Parties confirm this
                     interpretation of the Declaration, in particular the 1954 Agreement, the
                     1955 Protocol and the 1968 arrangement. These instruments provide a

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                     109 	               maritime dispute (joint diss. op.)

                     solid legal basis for the existence of a maritime boundary that extends
                     along the parallel for 200 nautical miles from the continental coasts of
                     Peru and Chile. It may also be noted that consequently Peru is entitled to
                     sovereign rights and jurisdiction, as accepted under the modern inter
                     national law of the sea, in the “outer triangle” that lies beyond the general
                     maritime zone of Chile so delimited.

                                                                (Signed) Xue Hanqin.
                                                               (Signed) Giorgio Gaja.
                                                            (Signed) Dalveer Bhandari.
                                                        (Signed) Francisco Orrego Vicuña.

                     110

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166

DISSENTING OPINION OF JUDGE CHAGLA

I regret that I am unable to agree with the conclusion arrived at
by the majority of my colleagues. As the matter is of considerable
importance, I think it necessary to give the reasons for my dissent.

There are two unique features in this case—one is the third
condition in the Portuguese Declaration, and the other is that the
Portuguese Application which started this case was filed within
three days of the making of the Declaration and before the pro-
vision contained in the second part of Article 36 (4) of the Statute
of the Court could be complied with. Neither of these aspects has
ever been considered by this Court, and they both raise very
important questions with regard to the jurisdiction of the Court.

Turning to the First Objection of India, it may be readily granted
that the Optional Clause gives the widest freedom to a State which
submits to the compulsory jurisdiction of the Court. This freedom
is in two respects. A State has the right to define the categories
of disputes which it is prepared to submit to the compulsory
jurisdiction of the Court. It may make any reservation it likes and
it may limit the categories to any extent that it desires. The other
respect is that it can limit the time of the pendency of the Declaration.
The Declaration may last two vears, one year, six months, or even
it could be terminable on mere notice. But the third condition of
Portugal] is an entirely different kind of reservation. It reserves
the right to Portugal to alter and modify the scope of its Declaration
during the pendency of that Declaration.

It was urged by India that this reservation was retroactive and
it was open to Portugal to withdraw a pending litigation by having
resort to this reservation. It is pointed out that the expression
“from the date of the notification” used in the third condition
only indicates the point of time from which the reservation be-
comes effective; it does not refer to its scope or ambit. There is no
limitation placed by Portugal upon the extent of the reservation
and, therefore, it is suggested that Portugal, under this third
condition, reserves to itself the right of withdrawing a pending
litigation before the Court. India is not without support in this
interpretation. The reaction of Sweden to this condition was the
same as India. (See Sweden’s Note to the Secretary-General of
the United Nations dated 23rd February, 1956.) Portugal replied
to this Note by its Note of 5th July, 1956, in which it stated that
this condition did not warrant the conclusion that the Portuguese

45
167 RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE CHAGLA)

Government would be in a position to withdraw from the juris-
diction of the Court any dispute, or category of disputes, already
referred to it. If the reservation is retroactive, then there can be
no dispute that the reservation is bad. On the other hand, it must
be borne in mind that a court must always lean against giving
retroactive or retrospective effect to an instrument, the more so
when such an interpretation is likely to invalidate the instrument
and to deprive a tribunal of its jurisdiction. Even if the language
of the reservation is susceptible of this interpretation, if the other
interpretation is possible, the Court would rather give the inter-
pretation to the instrument which would render it valid and which
would not deprive this Court of its jurisdiction.

But whatever interpretation the Court places upon this condition,
it must be an interpretation based upon the language used in the
instrument itself. No assistance can be sought from the ex post
facto and 2x parte statement made by Portugal to which reference
has been made by which it attempted to clarify and elucidate its
own Declaration. No canon of construction is more firmly estab-
lished than the one which lays down that the intention of a party
to an instrument must be gathered from the instrument itself and
not from what the party says its intention was.

But even if no retroactive effect can be given to Portugal’s
Declaration, it suffers from a defect, which, in my opinion, is
fatal. Once a reservation is made with regard to categories of dis-
putes which are submitted to the compulsory jurisdiction of the
Court, categories over which the Court has jurisdiction must be
specified and defined. The jurisdiction of the Court with regard to
these categories of disputes must be finally accepted when the
Declaration is made.

It is futile to try and draw a distinction between the Portuguese
reservation and the right to terminate a Declaration at any time.
It was suggested in the course of the arguments that, in the latter
case, a State can put an end to its obligation to submit to the
compulsory jurisdiction of the Court with regard to all categories
of disputes, while, in the former case, a more limited right was
reserved by Portugal in that it could only limit the scope of its
obligation. This argument is specious. In the latter case, by ter-
minating the Declaration, the juridical bond between a declarant
State and the other State comes to an end. The State no longer
adheres to the Optional Clause and is not liable to the compulsory
jurisdiction of the Court with regard to any matter. In the former
case, the juridical bond continues. In the latter case, both the right
to bring a dispute. before the Court and the obligation to submit
to the jurisdiction of the Court come to an end. In the former case,
the right remains and the State can put an end to the obligation
with regard to any dispute at its own discretion.

Distinguished authors have regretted the continuous decline of
the Optional Clause, and it is the duty of the Court to prevent any

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further decline of this Clause. Judge Lauterpacht in the Norwegian
Loans case (.C.J. Reports of Judgments, Advisory Opinions and
Orders, 1957), when considering the French reservation in that
case, said (p. 64) that it ‘‘tended to impair the legal—and moral
authority and reality of the Optional Clause’, and also (p. 65) that
it ‘threatens to disintegrate that minimum of compromise which
is embodied in the Opticnal Clause”. These observations also
apply to the novel reservation embodied by Portugal in her Decla-
ration. Acceptance by Portugal of the compulsory jurisdiction of
the Court is entirely illusory. The minimum of compromise which
is embodied in the Optional Clause is the right given to the State
to limit the categories of disputes which it is prepared to submit
to the compulsory jurisdiction of the Court; but any further
derogation from that minimum of compromise should not be
permissible. Once a State, by its Declaration, has expressed its
clear will to submit to the compulsory jurisdiction of the Court a
particular dispute, the jurisdiction of the Court with regard to that
dispute must continue so long as the Declaration lasts. As the
mtention of the Optional Clause is to make a State accept the
compulsory jurisdiction of the Court, any reservation which
frustrates that intention must be held to be opposed to the general
purpose of the Optional Clause and therefore invalid.

It was suggested that even if this reservation was invalid, as it
did not affect the present case, it could be severed from the rest
of the Declaration and the rest of the Declaration could be held
valid. The doctrine of severance is well settled in municipal law
and it also applies to international law. If a provision in an instru-
ment is an essential condition, and if the court is satisfied that in
the absence of that essential condition the instrument would not
have been executed, then if the condition is bad, the court is power-
less and the whole instrument must be declared to be invalid.
Otherwise, the court would be writing a new instrument without
the essential condition. In this case there cannot be the slightest
doubt that the reservation we are considering is an essential
condition of Portugal’s adherence to the Optional Clause. It is on
this condition that Portugal has agreed to confer jurisdiction upon
the Court. The condition is of the very essence of the submission
of Portugal to the compulsory jurisdiction of the Court, and if this
condition is invalid, the whole Declaration must be declared to be
invalid.

* * *

As I am of the opinion that India’s First Objection should
prevail, it would be unnecessary to consider her Second and Fourth
Objections, but as they have been argued at considerable length

47
169 RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE CHAGLA)

and as they raise questions of considerable importance, I would
like to express my opinion on them.

Both the Objections are based on the fact that Portugal’s
Declaration was deposited with the Secretary-General of the United
Nations on the 19th December, 1955, and the present Application
was filed on the 22nd December, 1955. I do not think there is any
instance in the history of this Court where a State has filed an
Application with such lightning speed. It is urged on behalf of
Portugal that adherence to the Optional Clause is a unilateral act
by a State and the Declaration comes into force immediately it is
deposited with the Secretary-General of the United Nations. It
is further pointed out that there is nothing in the Statute or the
Rules of the Court which requires that any time should elapse
between the making of the Declaration and the filing of the Appli-
cation. It is therefore said that although copies of the Declaration
were not transmitted by the Secretary-General to the Parties to
the Statute nor to the Registrar of this Court, and although India
had no knowledge that any such Declaration had been made by
Portugal, the Declaration became immediately effective, and to
the extent that the same obligations were undertaken by the
Declaration of Portugal and the Declaration of India, India became
liable to be called before the Court in answer to any claim made by
Portugal which fell within the scope of the two Declarations.

The narrow question that we have to consider is whether the
Statute of the Court contemplates that the Declaration should be
immediately effective without knowledge, presumptive or actual,
on the part of the other States who have already adhered to the
Optional Clause—in other words, whether a juridical bond can be
created by a new declarant with the other States who are already
Parties to the Optional Clause by the mere deposit of the Declara-
tion with the Secretary-General so as to entitle the new declarant
immediately to file an Application and bring another State before
the Court. India has contended that by this precipitous Application,
Portugal has violated the principle of equality of States before the
Court, a principle which is the very basis of the Optional Clause.
Portugal, on the other hand, has relied on the letter of the law and
has urged that apart from the reciprocity of obligations at the date
of the Declaration, there is no other reciprocity or equality which
is contemplated by Article 36 (2) of the Statute. Whether the Sta-
tute permits a State to file an Application before the ink on its
Declaration is dry or not, it will be agreed that this is a practice
which should not be countenanced by the Court; and if there is
any provision in the Statute which can permit the Court to refuse
to entertain Portugal’s Application, it should do so under the
circumstances of the case.

Article 36 (4) of the Statute consists of two parts: one, making
it incumbent upon a State making a Declaration to deposit it with
the Secretary-General of the United Nations, and the second

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170 RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE CHAGLA)

making it incumbent upon the Secretary-General to transmit
copies thereof to the Parties to the Statute and to the Registrar of
the Court. It is common ground that unless the Declaration is
deposited as required by Article 36 (4), the Declaration cannot
become effective. It is difficult to understand why, if the first part
of Article 36 (4) is mandatory, the second part is not equally
mandatory. It is said that the second part is purely administrative
or procedural and it merely gives a direction to the Secretary-
General to carry out his duties. It is difficult to accept the argument
that a provision so unimportant should have found a place in so
solemn a document as the Statute of the Court. In my opinion, the
same importance should be attached to both the parts of Article 36
(4). There must have been some reason why the framers of the
Statute inserted this provision in Article 36 (4) and the obvious
reason is that some time should elapse between the making of the
Declaration and the filing of an Application.

It is unnecessary in this case to speculate as to what is the proper
time that should elapse between the making of the Declaration
and the filing of the Application. Sufficient unto the day is the law
thereof: and it will be sufficient to deal only with the facts of this
case. It is clear that in this case an Application has been filed by
Portugal before the second part of Article 36 (4) was complied with,
and it is open to the Court to say that the Application is premature
and that Portugal should have waited until effect had been given
to the provision of the second part of Article 36 (4).

Emphasis has been placed upon the expression ‘‘#pso facto” used
in Article 36 (2) of the Statute. It is suggested that this expression
makes it clear that the mere deposit of the Declaration, and nothing
more, brings about the consensual bond between the declarant
State and the State which has accepted the same obligation. The
expression ‘‘zpso facto” must be read with the words that follow
“and without special agreement”. What the Statute emphasizes
is that apart from the Declaration no special agreement is necessary
to attract the Application of the Optional Clause. Article 36 (2), in
my opinion, does not deal with the question as to when the Decla-
ration becomes effective. For this purpose we have to turn to
Article 36 (4).

There is also force in India’s contention that by the timing of
Portugal’s Application, India was deprived of the right to invoke
in her favour the third condition in Portugal’s Declaration. It is
now well-settled law that a State which is a Party to the Optional
Clause is entitled to incorporate into its own Declaration any
condition contained in the Declaration of any other State which
has adhered to the Optional Clause. (See the Norwegian Loans case,
I.C.J. Reports of Judgments, Advisory Opinions and Orders, 1957.)
Therefore, it cannot be disputed that India had the right to make
use of the third condition as against Portugal as much as Portugal

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I7I RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE CHAGLA)

had the right as against India. But if this right is to have any
meaning or significance, it must be a right which can be exercised.
Portugal, by filing the Application when she did, made it impossible
for India to exercise that right. Portugal could have invoked this
condition any time before filing the Application. India could have
only invoked it if she had knowledge of the Declaration before the
Application was filed. Once the Application was filed, inasmuch as
the condition, as I have pointed out, is not retroactive, India was
deprived of that right and was compelled to accept the jurisdiction
of the Court whether she liked it or not. In the Norwegian Loans
case, it was stated that Norway, equally with France, was entitled
to except from the compulsory jurisdiction of the Court disputes
falling within the ambit of France’s reservation. In the Phosphates
in Morocco case, although a particular limitation in the Declaration
of one State did not appear in the Declaration of the other, it was
held that the limitation must hold good as between the Parties;
and in the Electricity Company of Sofia and Bulgaria case, the Court
said that in consequence of the condition of reciprocity laid down
in paragraph 2 of Article 36, the limitation contained in the Decla-
ration of one State must be applicable as between the Parties.

Now what is the reciprocity that Article 36 (2) contemplates? Is
it the narrow reciprocity suggested by Portugal, namely, the reci-
procity that should subsist at the date of the Application, or a
wider reciprocity which would entitle a State to avail itself of every
limitation contained in the other Party’s Declaration to the same
extent and in the same manner as the other Party?

It should be remembered that in the Norwegian Loans case, at
the date of France’s Application, Norway had not availed itself
of the reservation contained in France’s Declaration with regard
to domestic jurisdiction. Therefore, if reciprocity had been narrowly
construed in that case, Norway could not have availed herself of
that limitation. But the Court held that Norway was as much
entitled as France to plead that the particular dispute fell within
her domestic jurisdiction. Therefore, strictly, the principle of
reciprocity had been given effect to after France’s Declaration
had been filed and the Court did not confine itself to considering
the situation as it existed at the date of France’s Application. The
question that now arises is whether the Court should not look at the
situation as it existed before Portugal filed her Application. And if
the Court comes to the conclusion that India could only have
exercised the third limitation contained in Portugal’s Declaration
before Portugal filed her Application, and if India has been deprived
of that right, then the principle of reciprocity under Article 36 (2)
has been violated. In any view of the case, in my opinion, the

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Court should come to the conclusion that the haste with which
Portugal filed this Application has resulted in an abuse of the
Optional Clause and also an abuse of the processes of the Court,
and therefore the Court should refuse to entertain Portugal’s
Application.

*
* *

India’s Third Objection is that the present dispute was brought
before this Court without preliminary diplomatic negotiations and
without the negotiations reaching a deadlock. It is urged by India
that the jurisdiction of the Court is confined to deciding legal
disputes, and before there can be a dispute, it must be clear that
the controversy cannot be settled by negotiations. It is pointed out
that before a State is brought before the bar of the International
Court, every attempt should first be made to see whether the
controversy in question could not be amicably settled. Our atten-
tion has been drawn to the various Notes that were exchanged
between India and Portugal, and it does appear that Portugal
never raised in these Notes the general question of a right of passage
as such. What was discussed in these Notes was certain concrete
questions relating to special situations arising out of disturbances
which had occurred within the Portuguese enclaves; and what
Portugal insisted on was that India had incurred an international
responsibility by its behaviour at a given time and in a specific
situation. Our attention is drawn to the fact that if the general
question of a right of passage had been raised in this diplomatic
exchange of Notes, this Court would have had a better conception
of the right claimed by Portugal. As it is, the Court is not in a
position to know or judge what is the actual nature of the right
claimed by Portugal. Nor had India been given an opportunity
to formulate or express her views with regard to the right claimed
by Portugal before the matter was brought before the Court.
Reliance is placed on the observations of the Court in the Electricity
Company of Sofia and Bulgaria case (P.C.I.J., Series A/B, No. 77,
p. 132): ‘What is essential is that, prior to the filing of an Appli-
cation by one Party bringing a dispute before the Court, the other
Party must have been given the opportunity to formulate and to
express its views on the subject of the dispute. Only diplomatic
negotiations will have afforded such an opportunity.”

It is also urged by India that this rule with regard to preliminary
diplomatic negotiations does not operate only in those cases where
there is a provision to this effect in a treaty between the Parties.
The rule is of general application and is based on two considerations:
(1) the need of the Court to know what is the subject-matter of the
dispute, and (2) efforts made by the Parties to reach an agreement
have been fruitless.

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173 RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE CHAGLA)

There can be no doubt as to the desirability of States negotiating
with regard to a dispute and trying to arrive at a fair solution
before they avail themselves of the compulsory jurisdiction of the
Court. But what we have to consider is whether failure to pursue
this desirable course deprives the Court of its jurisdiction. It is
clear on the authorities that what the Court has insisted upon is
the mere existence of a dispute, and a dispute has been defined as
a divergence of opinions or views between two States: It has also
been held that this divergence is established after one Government
finds that the attitude of the other is contrary to its own. In the
Chérzow Factory case (Series A, No. 13, p. 10), the Court pointed
out that “it would no doubt be desirable that a State should not
proceed to take as serious a step as summoning another State to
appear before the Court without having previously, within reason-
able limits, endeavoured to make it quite clear that a difference of
views is in question which has not been capable of being otherwise
overcome. But, in view of the wording of the article, the Court
considers that it cannot require that the dispute should have
manifested itself in a formal way; according to the Court’s view,
it should be sufficient if the two Governments have in fact shown
themselves as having opposite views.” Therefore, it is clear that the
dispute should not be manifested in any formal way and all that
is necessary is that two Governments should show themselves as
holding opposite views. It has also been observed in the case of
Certain German Interests in Upper Silesia (Series A, No. 6, p. 14):
‘., a difference of opinion does exist as soon as one of the Govern-
ments concerned points out that the attitude adopted by the other
conflicts with its own views”. It is difficult to take the view that
the attitude of India on the question of Portugal’s claim with
regard to a right of passage does not conflict with the view held
by Portugal. I would therefore overrule this Objection.

*
* *

Turning to the Fifth Objection, we heard very learned arguments
as to the burden of proof. In my opinion, now that all the arguments
are before the Court, the question of burden of proof loses much
of its importance. But even so, I should like to say a few words
about it. It is always for a party which comes before a court or
a tribunal to make out a prima facie case that the tribunal or court
has jurisdiction. If that prima facie burden is discharged, it may
be that the burden would shift on to the other party. When India
objects to the jurisdiction of the Court on the ground that the
subject-matter of the dispute falls exclusively within her domestic
jurisdiction, it would not be correct to describe her attitude as it
has been described by Counsel for Portugal as attempting to obstruct
the normal course of statutory procedure. Undoubtedly the party
coming to the Court has the right to have the benefit of the procedure

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174 RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE CHAGLA)

provided by the Statute and the Rules for contentious matters.
But that is so only on the assumption that the Court has jurisdiction.
All that India has done is to draw the attention of the Court to the
fact that, looking to her Declaration, the Court has no jurisdiction
over this particular dispute. It is ultimately for the Court to decide
the question of jurisdiction and it is only if the Court takes the
view that the dispute falls within the ambit of India’s Declaration
that the matter can go on and the rules of statutory procedure can
be given effect. It is equally incorrect to say that inasmuch as
India is relying on an exception contained in her Declaration which
confers jurisdiction upon the Court the burden is upon her to make
good that exception. India has accepted the compulsory jurisdiction
with regard to certain categories of disputes, and the particular
category with regard to matters falling exclusively within her
domestic jurisdiction has been excluded. Therefore, it is for Portugal
to establish that the dispute which she has brought before the
Court falls within the scope of India’s Declaration, and she can
only establish that provided she satisfies the Court that the dispute
is not exclusively within the domestic jurisdiction of India. The
reservation made by India with regard to matters falling exclusively
within her domestic jurisdiction is not an exception: it is an essen-
tial—an integral—part of her acceptance of the jurisdiction of the
Court.

Coming to the substance of the matter, there are certain points
which are beyond controversy. The first is that India has exclusive
territorial sovereignty over the territory through which Portugal
claims a right of passage or a right of transit. I think it is equally
indisputable that prima facie a State enjoying territorial sover-
eignty has the right to allow or to prohibit a right of passage or
transit through her territories to any other State or to permit a
right of passage or transit under such terms and conditions as she
thinks proper. It is true that even though a subject-matter may
fall within the domestic jurisdiction of a State, the State may not
have complete discretion with regard to it but its discretion may
be controlled by any international obligation undertaken by it. If
India has undertaken any international obligation, then the matter
is no longer exclusively within her domestic jurisdiction. In other
words, the matter would not be within the reserved domain but
would be within the international domain into which the Court can
enquire and determine what are her obligations according to inter-
national law.

It is true that in a large majority of eases, when an Objection
is taken on the ground of domestic jurisdiction, the Court is
inclined to join the Objection to the merits because the Court feels
that it is impossible to arrive at a decision on this issue without
investigating into the merits of the subject. But this is not always

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175 RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE CHAGLA)

so. Otherwise it would never be open to a State to take a Preliminary
Objection on this ground, The test has been clearly laid down by
this Court as to what has to be established in order that the Court
will not uphold the Objection at a preliminary stage but would
stand it over to the hearing. Portugal must establish that the legal
grounds relied upon by her justify a provisional conclusion that
they are of juridical importance for a decision of the dispute
according to international law. (See the classical statement of the
law in the Nationality Decrees of Tunisia and Morocco, Series B,
No. 4, p. 25.) To use simpler language, Portugal must show that
her claim discloses an arguable cause of action under international
law. Again, to use a different language, Portugal must show that
the general rule that the subject-matter being within the domestic
jurisdiction of India is within her discretion has been displaced by
some rule of international law.

Now what is the subject-matter of the dispute between Portugal
and India? I will not consider the various metamorphoses which
Portugal’s claim has undergone. But as finally indicated to this
Court it is a right of transit between Daman and the Portuguese
enclaves of Dadra and Nagar-Aveli in order to maintain communi-
cations between Daman and these two enclaves. The first striking
thing about this alleged right is that it is completely indefinite and
vague and, as was described by Counsel for India, ‘something
undefined and disembodied, hard both to exercise and to enforce’’.
When a State comes to this Court claiming a right against another
State, it must be a right which should be enforceable. It must be
a right which, if conceded by the Court, could be given effect to by
the defendant State. No Court would give judgment which could not
be carried out by the losing party. And the most surprising feature
of Portugal’s claim in this case is that if she were to succeed in her
contentions, the judgment she would obtain from this Court could
never be given effect to by India. If the Court were to declare that
Portugal has a right of transit over Indian territory from Daman to
the enclaves, it would be impossible for India to know what the
nature, extent or content of that right would be. Would Portugal
be entitled under this right to transport a whole army from Daman
to the enclaves in order to suppress the revolt which has taken place
there? Would she be able to transport tanks and artillery and all
the paraphernalia of modern arms and armaments? Would she be
able to fly aeroplanes over Indian territory in order to bomb the
enclaves in order to reduce them to subjection? Or would the right
be confined to transit facilities to be given to diplomatic envoys or
a small unit in order to maintain law and order in the enclaves?
These queries conclusively establish that Portugal has failed to
formulate any legal right which she can assert against India. It
is only by negotiations which may result in a treaty that the modali-
ties of a right of transit can be settled between India and Portugal.
But the Court cannot be called upon to draft a treaty between these

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two States. The Court can only pronounce upon an existing right,
and if the right claimed is so insubstantial as to be incapable of
being translated into something which is enforceable, the Court
must come to the conclusion that the right claimed is not a legal
right, much less a right recognized by international law or a right
with regard to which India’s discretion is controlled by any inter-
national obligation. It seems to me that on this ground alone
India’s Preliminary Objection must be sustained. It would be a
sheer waste of time of this Court to join this issue to the merits
when at the end of it the Court would have to come to the con-
clusion that no effective declaration can be made in favour of
Portugal.

I have already pointed out that it is an elementary principle of
international law that a State has exclusive competence within its
own territory. This principle was emphatically pronounced by
Chief Justice Marshall in the Schooner Exchange case (1812, 7
Cranch 116): "The jurisdiction of the nation within its own territory
is necessarily exclusive and absolute. It is susceptible of no limi-
tation not imposed by itself. Any restriction upon it, deriving
validity from an external source, would imply a diminution of its
sovereignty to the extent of the restriction, and an investment of
that sovereignty to the same extent in that power which could
impose such restriction. All exceptions, therefore, to the full and
complete power of a nation within its own territories, must be
traced up to the consent of the nation itself. They can flow from no
other legitimate source.” It is not suggested by Portugal that
India- has ever given her consent to any limitation upon her terri-
torial sovereignty over the territory in question. Although in her
Memorial Portugal relied upon treaties between the Maratha rulers
and herself, this contention was given up or at least not pressed at
the hearing. As a matter of fact, the only treaty which deals with
this subject at all is the Portuguese-Maratha Treaty of 1741, which,
surprising as it may seem, provides expressly that soldiers of either
power are not to enter the territory of the other without permission.
If, therefore, India has not given her consent to any limitation upon
her sovereignty, is there any other international obligation under-
taken by India independently of any treaty or her consent? I may
observe in passing that Portugal concedes that the right of transit
claimed by her, even though it may be without any immunity,
does constitute a limitation upon India’s sovereignty.

An international obligation may arise through local custom. If
for a considerable period of time Portugal has been exercising this
right, then the right may. be upheld by international law. But in
order that local custom should be established, it is not sufficient for
Portugal merely to state that for a long period she maintained

55
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communications between Daman and the enclaves. She must go
further and establish that the transit facilities that she had were
enjoyed by her as a matter of right and not as a matter of grace or
concession on the part of the Indian Government. And if one thing
is clear beyond anything else from the record that we have before
us, it is that throughout the period in question—from 1818 when
the British appeared on the scene onwards—the facilities enjoyed
by Portugal with regard to communicating with her enclaves were
entirely at the discretion of the Indian Government and they were
granted to Portugal as a matter of grace and indulgence. The Indian
Government always reserved to itself the right to control the passage
or transit facilities and even, if occasion arose, to prohibit it alto-
gether. We have instances where a complete embargo was placed
by the Indian Government on the carriage of certain goods. We
have instances where no less a person than the Consul-General of
Portugal reminded the Governor of Diu that authorization by the
British authorities was indispensable before any Portuguese troops
could cross British territory. Therefore, India is right when she says
that a right of passage subject to be revoked in whole or in part by
somebody else is not a right at all. I think that Portugal realizes
the weakness of her case under this head and therefore what has
been really urged before us by Portugal is that this right which she
claims is warranted by general principles of international law. Gen-
eral principles of international law would be applicable if Portugal
establishes a general custom in contradistinction to a local custom
by which a State has the right to have access to enclaves by transit
facilities being given to her in order to maintain communications
between herself and her enclaves. Now the only general custom
which is comparable to the question we have to consider which
international law recognizes is the right of innocent passage in
territorial seas and in maritime parts of international rivers, and
also immunity given to diplomatic representatives when they are
in transit between one State and another. No general custom has
ever been established permitting a State to have access to her
enclaves as of right. Portugal has relied on a learned study made
by Professor Bauer of other enclaves, but this study only shows that
the right of passage either arises out of treaty or out of local custom
which is not applicable to the present case.

A principle of international law may also be imported from
municipal law where the principle in municipal law is universally
recognized and when that principle is not in conflict with any rule
of international law itself; and the strongest reliance is placed by
Portugal on the principle of municipal law which may be described
as an easement of necessity. It is said that when you have an owner

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178 RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE CHAGLA)

of land and his land is surrounded by the lands of other owners, the.
former has a right of access to a public road. This right of access
arises out of necessity because but for this access the owner would
be landlocked and would not be able to get out of his land, and
therefore, in these circumstances, municipal law presupposes a
right of way in the first owner over the lands of other owners. In
my opinion, it would be extremely unsafe to draw an analogy
between the rights of an owner and the obligations of other owners
under municipal law and the rights and obligations of States under
international law. There can be no comparison between private
property and territorial sovereignty nor can there be any compar-
ison between a citizen and a sovereign State. A sovereign State can
pass any legislation affecting private property. It can compel the
owner of land to cede any right to neighbouring owners. But that
surely cannot be true of territorial sovereigns. Portugal cannot
compel India to cede any right to her nor can India be placed under
any obligation because Portugal is under a necessity to have
access to her enclaves. Further, such a rule would obviously be in
contradiction with the one undisputed well-established principle
of international law, namely, territorial sovereignty, and therefore
there is no scope for importing this principle of municipal law into
the domain of international law.

Even in municipal law parties may agree as to the nature and
extent of an easement, and if parties agree, then municipal law will
not presume an easement of necessity. In this case, the relations
between Portugal and the territorial sovereign of India clearly
demonstrate that the conditions of Portugal’s passage or transit
over Indian territory were clearly settled and those conditions were
that Portugal had no right to a passage or transit but she could
only be afforded such facilities as the Indian Government, in its
absolute discretion, thought fit to concede. Therefore, Portugal
has failed to make out any case, let alone an arguable case, that
India’s discretion with regard to this particular subject-matter,
which clearly falls within her own domestic jurisdiction, is controlled
by any international obligation or that there is any rule of inter-.
national law which takes this matter out of the reserved domain.
Under the circumstances, I think that the Court should uphold this
Objection raised by India and should decide that there is no neces-
sity for further investigation of the facts and no useful purpose
would be served by joining this Objection to the hearing.

*
* *

I now come to the last and final Objection of India, which is
Objection Six. It is with regard to ratione temporis, and India’s
contention is that the dispute brought before the Court arose

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179 RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE CHAGLA)

prior to 5th February, 1930, with regard to situations or facts
prior to that date and that therefore the dispute is clearly excluded
from the competence of the Court by reason of her reservation
in her Declaration of 28th February, 1940. It is clear from the juris-
prudence of the Court that the only facts or situations which can
be considered for the purpose of this Objection are those facts or
situations which are the source or cause of the dispute. It is clear
to my mind that the source of the dispute is the divergence of
opinion between India and Portugal as to the legal implications
of what transpired from 1812 onwards. The divergence is not only
as to what happened in 1954. The divergence is as to the whole
concatenation of facts and situations relied on by Portugal for
asserting her right. Portugal says that India has acted contrary
to her obligation to allow right of passage to Portugal and the
breach of her obligation only took place in 1954, and therefore it
is irrelevant to consider for the purpose of this Objection any facts
or situations prior to 1954. This is clearly a fallacy. The obligation
of India itself is in dispute and according to Portugal herself the
obligation of India arises from facts and situations prior to 1930.
The question that the Court has to consider is not whether there
was any breach of Portugal’s legal right by India in 1954. The
question is whether Portugal had any legal right at all and Portugal
can only establish the legal right by a body of evidence from 1818
to 1954 which forms a single and continuous whole. This is not a
new dispute which Portugal seeks to bring before the Court. The
conflict of views between the two Governments stretches back to
1818. It is a dispute as to the true result in law of facts and situations
from 1818 onwards. In the Phosphates in Morocco case (P.C.I.T.,
Series A/B, No. 74, p. 24), the Court observed that the expression
“facts and situations’ was wide enough to embrace all the different
facts capable of giving rise to a dispute, and a situation would
include within its connotation not merely facts but also legal
consequences resulting from a given set of facts. Again, in the
Phosphates in Morocco case, dealing with the general object of the
limitation ratione temporis, it is stated (p. 24): “‘... it was inserted
with the object of depriving the acceptance of the compulsory
jurisdiction of any retroactive effects, in order both to avoid, in
general, a revival of old disputes, and to preclude the possibility
of the submission to the Court by means of an application of situa-
tions or facts dating from a period when the State whose action
was impugned was not in a position to foresee the legal proceedings
to which these facts and situations might give rise”. This obser-
vation in all its force applies to the present case. The Government
of India was not in a position to foresee the legal proceedings to
which the facts and situations from 1818 onwards might give rise.
And the whole object of India’s limitation contained in her Declara-
tion is to prevent adjudication by the Court with regard to such

58
180 RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE CHAGLA)

facts and situations. In my opinion, there is no answer to India’s
Sixth Objection.

I should like to make one general observation with regard to the
question of the jurisdiction of the Court. It has been said that a
good judge extends his jurisdiction. This dictum may be true of a
judge in a municipal court; it is certainly not true of the Inter-
national Court. The very basis of the jurisdiction of this Court is
the will of the State, and that will must clearly demonstrate that it
has accepted the jurisdiction of the Court with regard to any dispute
or category of disputes. Therefore, whereas a municipal court may
liberally construe provisions of the law which confer jurisdiction
upon it, the International Court on the other hand must strictly
construe the provisions of the Statute and the Rules and the instru-
ments executed by the States in order to determine whether the
State objecting to its jurisdiction has in fact accepted it.

I would, therefore, dismiss Portugal’s claim on the ground that

the Court has no jurisdiction to entertain it.

(Signed) M. C. CHAGLA.

59


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA COMPAGNIE DU PORT,
DES QUAIS ET DES ENTREPOTS
DE BEYROUTH ET DE LA
SOCIÉTÉ RADIO-ORIENT
(FRANCE c. LIBAN)

ORDONNANCE DU 15 OCTOBRE 1959

1959

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE COMPAGNIE
DU PORT, DES QUAIS ET DES ENTREPOTS
DE BEYROUTH AND THE
SOCIETE RADIO-ORIENT
(FRANCE v. LEBANON)

ORDER OF 15 OCTOBER 1959
La présente ordonnance doit étre citée comme suit:

« Affaire de la Compagnie du Port, des Quais et des Entrepéts
de Beyrouth et de la Société Radio-Orient
(France c. Liban),
Ordonnance du 15 octobre 1959: C. I. J. Recueil 1959, p. 280. »

This Order should be cited as follows:

“Case concerning the Compagme du Port, des Quats et des
Enirepots de Beyrouth and the Société Radio-Orient
(France v. Lebanon),

Order of 15 October 1959: I.C.J. Reports 1959, p. 280.”

Sales number 219

280

INTERNATIONAL COURT OF JUSTICE

YEAR 1 1959
959 15 October
General List:

15 October 1959 No. 42

CASE CONCERNING THE COMPAGNIE
DU PORT, DES QUAIS ET DES ENTREPÔTS
DE BEYROUTH AND THE
SOCIETE RADIO-ORIENT
(FRANCE v. LEBANON)

ORDER

Present: President KLAESTAD; Vice-President ZAFRULLA KHAN;
Judges BASDEVANT, HACKWORTH, WINIARSKI, BADAWI,
ARMAND-UGon, KOJEVNIKOV, MORENO QUINTANA, COR-
DOVA, WELLINGTON Koo, SPIROPOULOS, Sir Percy SPEN-
DER; Depuity-Registrar GARNIER-COIGNET.

The International Court of Justice,

composed as above,

after deliberation,

having regard to Article 48 of the Statute of the Court and to
Article 37 of the Rules of Court,

Makes the following Order :

Having regard to the Order of 18 June 1959 fixing 19 October 1959
as the time-limit for the filing of the Counter-Memorial of the
Government of the Lebanese Republic;

4
“COMPAGNIE DU PORT DE BEYROUTH” (ORDER 15 X 59) 281

Whereas by a letter dated 9 October 1959, received on 12 October,
the Minister of Lebanon to the Netherlands and since appointed
Agent for his Government in the present case, has, on behalf of
his Government, requested that this time-limit be extended to
31 December 1959; ,

Whereas, on 12 October 1959, the Agent for the French Govern-
ment was informed of the letter from the Minister of Lebanon at
London and was requested to make known the views of his Govern-
ment on the request thus presented on behalf of the Lebanese
Government ;

Whereas, on the same day, the Agent for the French Govern-
ment stated that his Government had no objection to this extension ;

THE CouRT

decides to extend to 29 December 1959 the time-limit for the
filing of the Counter-Memorial of the Lebanese Government.

Done in French and in English, the French text being authori-
tative, at the Peace Palace, The Hague, this fifteenth day of Octo-
ber, one thousand nine hundred and fifty-nine, in three copies, one
of which will be placed in the archives of the Court and the others
transmitted to the Government of the French Republic and to
the Government of the Republic of Lebanon, respectively.

(Signed) Helge KLAESTAD,
President.

(Signed) GARNIER-COIGNET,
Deputy-Registrar.