INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
RIGHT OF PASSAGE OVER

INDIAN TERRITORY
(PORTUGAL v. INDIA)
MERITS

JUDGMENT OF 12 APRIL 1960

1960

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU
DROIT DE PASSAGE

SUR TERRITOIRE INDIEN
(PORTUGAL c. INDE)
FOND

ARRÊT DU 12 AVRIL 1960
This Judgment. should be cited as follows:

“Case concerning Right of Passage over Indian Territory (Merits),
judgment of 12 April 1960: I.C.J. Reports 1960, p. 6.”

Le présent arrêt doit être cité comme suit:

«Affaire du droit de passage sur territoire indien (fond),
Arrêt du 12 avril 1960: C.T. J. Recueil 1960, p. 6.»

Sales number 99 6
N° de vente :

INTERNATIONAL COURT OF JUSTICE

1960
12 April
General List: YEAR 1960
No. 32

12 April 1960

CASE CONCERNING
RIGHT OF PASSAGE OVER

INDIAN TERRITORY

(PORTUGAL v. INDIA)
MERITS

Jurisdiction of Court.—Optional Clause.—Declaration of acceptance of
jurisdiction of Court.—Reservation of disputes as to matters falling within
domestic jurisdiction.—J]urisdiction accepted subject to reservation ratione
temporis.—"Disputes” and “‘facts or situations” subsequent to specified
date.

Merits.—Judicial determination of right claimed.—Maratha period.—
British and post-British periods.— Practice accepted as law by Parties.—
Local custom.—Question of right of passage in respect of private persons, |
civil officials, goods in general, armed forces, armed police, and arms and
ammunition.—Exercise of power of regulation and control by Sovereign of
intervening territory.

JUDGMENT

Present: President KLAESTAD; Vice-President ZAFRULLA KHAN;
Judges BASDEVANT, HACKWORTH, WINIARSKI, BADAWI,
ARMAND-Ucon,  KOJEVNIKOV, MORENO QUINTANA,
C6RDOVA, WELLINGTON Koo, SPIROPOULOS, Sir Percy
SPENDER; Judges ad hoc CHAGLA and FERNANDES;
Deputy-Registrar GARNIER-COIGNET.
7 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 Iv 60)

In the case concerning right of passage over Indian territory,

between
the Republic of Portugal,
represented by

Dr. Joao de Barros Ferreira da Fonseca, Ambassador of Portugal
at The Hague,

as Agent,

and by

Professor Inocéncio Galväo Telles, Director of the Faculty of
Law in the University of Lisbon, Member of the Upper House,

as Agent, Advocate and Counsel,

assisted by

M. Maurice Bourquin, Professor of the Faculty of Law in the
University of Geneva and in the Graduate Institute of Inter-
national Studies,

as Advocate and Counsel,

and by

M. Guilherme Braga da Cruz, Director of the Faculty of Law in
the University of Coimbra, Member of the Upper House,

M. Pierre Lalive d’Epinay, Professor of the Faculty of Law in
the University of Geneva,

M. Joaquim Moreira da Silva Cunha, Professor of the Faculty of
Law in the University of Lisbon, Member of the Upper House,

as Counsel,

and by

M. Henrique Martins de Carvalho, Counsellor for Overseas
Affairs at the Ministry for Foreign Affairs,

M. Alexandre Marques Lobato, Secretary of the Centre for Over-
seas Historical Studies,

M. Joao de Castro Mendes, Assistant in the Faculty of Law in the
University of Lisbon,

as Experts,
and by

M. José de Oliveira Ascensäo, Assistant in the Faculty of Law
in the University of Lisbon, ©

M. Carlos Macieira Ary dos Santos, Secretary of the Embassy of
Portugal at The Hague,

M. Antdénio Leal da Costa Lobo, Secretary of Legation,
as Secretaries,
8 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

and

the Republic of India,

represented by
Shri M. C. Setalvad, Attorney-General of India,
as Agent and Counsel,

assisted by

Maitre Henri Rolin, Professor of International Law in the Free
University of Brussels, Advocate, Member of the Belgian
Senate,

The Rt. Hon. Sir Frank Soskice, Q.C., M.P., former Attorney-
General of England,

M. Paul Guggenheim, Professor of International Law of the Law
Faculty in the University of Geneva and in the Graduate
Institute of International Studies,

Professor C. H. M. Waldock, C.M.G., O.B.E., Q.C., Chichele
Professor of Public International Law in the University of
Oxford,

Mr. J. G. Le Quesne, Member of the English Bar,
as Counsel,

and by

Shri Vasant Govind Joshi,

Shri Vishwanath Govind Dighe,

Shri Vithal Trimbak Gune,

Shri Leofredo Agenor de Gouvea Pinto,

Shri Ram Swarup Bhardwaj, from the Goa Research Unit, Ministry
of External Affairs,

Shri Jodo Francisco Caraciolo Cabral, of the Legal Department,
High Commission of India, London,

as Expert Advisers,
and by

Shri J. M. Mukhi, Legal Adviser in the Ministry of External
Affairs,

as Assistant Agent and Secretary,

THE CouRT,

composed as above,
delivers the following Judgment:

By its Judgment of 26 November 1957, the Court rejected four
of six Preliminary Objections raised by the Government of India
to the jurisdiction of the Court to entertain an Application insti-

6
Q RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

tuting proceedings by the Government of Portugal, filed on
22 December 1955, and joined the Fifth and the Sixth Objections
to the merits.

At the same time the Court ordered the resumption of the pro-
ceedings on the merits and fixed time-limits for the further plead-
ings. Requests for the extension of these time-limits were granted
by Orders of 10 February 1958, 28 August 1958, 6 November 1958
and 17 January 1959, and the Counter-Memorial, Reply and
Rejoinder were filed within the time-limits so fixed. The case
became ready for hearing on the filing of the last pleading on
5 February 1959.

The Court included on the Bench Mr. Mahomed Ali Currim
Chagla, Ambassador of India to the United States and Mexico and
Minister of India to Cuba, and M. Manuel Fernandes, Director-
General of the Ministry of Justice of Portugal and a member of
the International Relations Section of the Upper House, who had
respectively been chosen by the Government of India and the
Government of Portugal, in accordance with Article 31, paragraph 3,
of the Statute, to sit as Judges ad hoc.

Public hearings were held on 21, 22, 23, 24, 25, 26, 28, 29 and
30 September, on I, 2, 3, 5, 6, 9, 10, 12, 13, 14, I5, 16, 17, Ig, 20,
21, 24, 26, 27, 28, 29, 30 and 31 October, and on 3, 4, 5 and 6 Novem-
ber 1950. At these hearings the Court heard oral arguments and
replies by M. Galväo Telles, M. Bourquin, M. Braga da Cruz,
M. Pierre Lalive d’Epinay and M. Moreira da Silva Cunha, on
behalf of the Government of Portugal, and by Shri Setalvad,
Me Rolin, Sir Frank Soskice, M. Guggenheim and Professor Waldock,
on behalf of the Government of India.

In the course of the written and oral proceedings the following
Submissions were presented by the Parties:

On behalf of the Government of Portugal,

in the Application:

“May it please the Court,

(a) To recognize and declare that Portugal is the holder or bene-
ficiary of a right of passage between its territory of Damo (littoral
Damao) and its enclaved territories of Dadra and Nagar-Aveli, and
between each of the latter, and that this right comprises the faculty
of transit for persons and goods, including armed forces or other
upholders of law and order, without restrictions or difficulties and
in the manner and to the extent required by the effective exercise
of Portuguese sovereignty in the said territories.

(b) To recognize and declare that India has prevented and con-
tinues to prevent the exercise of the right in question, thus com-
mitting an offence to the detriment of Portuguese sovereignty over
the enclaves of Dadra and Nagar-Aveli and violating its inter-
national obligations deriving from the above-mentioned sources
and from any others, particularly treaties, which may be applicable.
10 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM, I2 IV 60)

(c) To adjudge that India should put an immediate end to this
de facto situation by allowing Portugal to exercise the above-men-
tioned right of passage in the conditions herein set out.”’

In the Memorial:

“May it please the Court,
1. To adjudge and declare:

(a) that Portugal has a right of passage through the territory of
India in order to ensure communications between its territory of
Daman (coastal Daman) and its enclaved territories of Dadra and
Nagar-Aveli;

(6) that this right comprises the transit of persons and goods, as
well as the passage of representatives of the authorities and of
armed forces necessary to ensure the full exercise of Portuguese
sovereignty in the territories in question.

2. To adjudge and declare:

(a) that the Government of India must respect that right;

(b) that it must therefore abstain from any act capable of ham-
pering or impeding its exercise;

(c) that neither may it allow such acts to be carried out on its
territory;

3. To adjudge and declare that the Government of India has acted
and continues to act contrary to the obligations recalled above;

4. To call upon the Government of India to put an end to this
unlawful state of affairs.”

As final Submissions filed on 6 October 1959:

“T.— Submissions relating to the Claims of Portugal

Whereas the claim of the Portuguese Government is designed to
secure: I. Recognition of the right possessed by Portugal to pass
over Indian territory to the extent necessary for the exercise of its
sovereignty over the enclaves of Dadra and Nagar-Aveli; 2. A
finding of India’s failure to respect the obligation binding upon it
as the result of that right.

A. As to Portugal’s right of transit

Whereas the territories of Dadra and Nagar-Aveli, which are
undeniably under the sovereignty of Portugal, are wholly enclaved
within the territory of the Union of India;

Whereas the exercise of Portuguese sovereignty over these
territories would therefore be impossible if Portugal were not
assured of being able to communicate with them by passing over
the few kilometres of Indian territory separating them one from
another and from the coastal district of Daman;

Whereas the claim of India to possess in this connection a dis-
cretionary power is manifestly incompatible with that necessity;

Whereas indeed such a claim would entitle India to oppose the
communications of Portugal with its enclaves on grounds of which
It

RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

India would be the sole judge and whenever India considered that
its convenience or its interests led it to adopt such an attitude;

Whereas the international legal system is essentially based upon
mutual respect of sovereignties ;

Whereas the Union of India has unequivocally recognized the
sovereignty of Portugal over the two enclaves just as indeed it had
been recognized by the previous sovereigns of the Indian territory;

Whereas, by that recognition, the Union of India and its prede-
cessors admitted that the existence of the two Portuguese enclaves
within Indian territory was a part of the legal system and undertook
to respect that situation ;

Whereas, in order to justify the discretionary power which the
Union of India claims to possess in respect of Portuguese transit,
it would be necessary to accept that, while recognizing the sover-
eignty of Portugal over the enclaves, it tacitly reserved a right at
its will to render impossible the exercise of that sovereignty;

Whereas such a reservation cannot logically be admitted and would
be contrary to the elementary requirements of good faith;

Whereas the right claimed by Portugal is moreover confirmed by
the agreements which it formerly concluded with the Marathas, by
local custom and by general custom, as well as by the concordance of
municipal legal systems with respect to access to enclaved land;

Whereas, indeed, the above-mentioned agreements cannot be
construed otherwise than as granting to Portugal the right of pas-
sage necessary for the exercise of the powers which those agreements
conferred upon it in the enclaves;

Whereas, furthermore, in the relations between Portugal and the
successive sovereigns of the territories adjoining the enclaves there
was established and consolidated in the course of nearly two cen-
turies, an unbroken practice in respect of the maintenance of the
indispensable communications between coastal Daman and the
enclaves; and whereas that practice was based, on the part of all
concerned, on the conviction that what was involved was a legal
obligation (opinio juris sive necessitatis) ;

Whereas general custom likewise fully confirms the right claimed
by Portugal; whereas the practice of States reveals no disagreement
in this connection; whereas, while. the conditions of the exercise
of the right of passage naturally vary according to the circumstances,
the right of the sovereign of the enclave to have with the enclave
the communications necessary for the exercise of sovereignty is
universally admitted, and whereas it would be impossible to contend
that that unanimity and uniformity do not bear witness to a con-
viction of the existence of a legal duty (opinio juris sive necessitatis) ;

Whereas, lastly, the municipal laws of the civilized nations are
unanimous in recognizing that the holder of enclaved land has a
right, for purposes of access to it, to pass through adjoining land;
whereas it is rare to find a principle more clearly emerging from the
universal practice of States im foro domestico and moré perfectly
T2

10

RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

meeting the requirements of Article 38, paragraph 1 (c), of the
Statute of the Court;

Whereas each of the titles invoked by Portugal would in itself be
sufficient to justify the right which it is claiming and whereas these
titles reinforce each other and their coexistence reveals the solidity
of their common basis;

Whereas Portugal is in no sense claiming a right of access to
Indian territory, but merely a right of transit, designed to assure
the communications between the enclaves themselves and between
the enclaves and the coastal district of Daman;

Whereas this right of transit is claimed only to the extent neces-
sary for the exercise of Portuguese sovereignty over the enclaves;

Whereas in claiming this right Portugal in no way disputes that
sovereignty over the territory, through which transit must be effect-
ed, belongs exclusively to India; whereas it is in no way claiming to
be entitled to withdraw persons or goods in transit from the exercise
of that sovereignty, and does not directly or indirectly seek for
them any immunity;

Whereas the transit forming the subject-matter of its claim
therefore remains subject to the regulation and control of India,
which must exercise these by taking, in good faith and on its own
responsibility, the necessary decisions;

Whereas Portugal merely asserts that the territorial competence
of India is not in this respect a discretionary competence, since
India is obliged, on its own responsibility, not to prevent the
transit necessary for the exercise of Portuguese sovereignty in the
enclaves;

Whereas the Indian Government contends that the subject-
matter of the Portuguese claim is too vague for the Court to be able
to pass upon it by the application only of the legal rules enumerated
in Article 38, paragraph x, of the Statute; whereas, however, that
contention fails to stand up to examination;

Whereas, indeed, the rules of international law referred to in
paragraph 1 of Article 38 are far from necessarily requiring greater
precision than those upon which the Portuguese Government relies,
which are recalled above;

For these reasons,
May it please the Court
To adjudge and declare

that the right of passage between the enclaves of Dadra and Nagar-
Aveli and between these enclaves and the coastal district of Daman,
as defined above, is a right possessed by Portugal and which must
be respected by India.

B. As to the failure of India to respect its obligation

Whereas the attitude of the Indian Government with regard to
Portuguese transit changed in the last months of the year 1953,
after Portugal’s refusal to accede to the request for the cession of
its territories in India (Rejoinder, paragraph 417);
13

II

RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

Whereas this change was marked in the first instance by a series
of restrictions which, while not immediately rendering impossible
the exercise of Portuguese sovereignty in the enclaves, undeniably
gravely impeded it and were such as to be liable to paralyse it com-
pletely if exceptional events occurred which obliged Portugal to
take rapid measures to ensure the maintenance of order at Dadra
and Nagar-Aveli (Memorial, Annex 40);

Whereas the threat of action directed against the Portuguese
territories of India could not be a matter of which the Indian Gov-
ernment was unaware; whereas the imminence of that action had
moreover been publicly announced on many occasions and in partic-
ular on 2 July 1954, in a manifesto, adopted at Bombay by persons
directing anti-Portuguese groups, which was reproduced in the
Indian Press (Indian Annex A. No. 7);

Whereas it was clearly incumbent upon the Indian Government to
take the measures which lay in its power to prevent the realization
of such a design (Judgment of the Court of 9 April 1949, in the Corfu
Channel Case, Reports, p. 22);

Whereas the Indian Government took no such measures but, on
the contrary, did not hesitate still further to weaken Portugal’s
capacity for resistance against the danger which threatened it, by
increasing the restrictions placed upon transit (Note from the Consul-
General of India at Goa, dated 17 July 1954, notifying the Portu-
guese Governor-General of a series of immediate measures, including
in particular a prohibition of the transport of munitions and military
equipment—Memorial, Annex 47);

Whereas a week elapsed between the occupation of Dadra (during
the night 21/22 July) and the expedition against Nagar-Aveli which,
having been begun on 29 July, was completed only in August;

Whereas after the occupation of Dadra, there could be no doubt
that a similar action would be undertaken against Nagar-Aveli, the
larger of the two Portuguese enclaves;

Whereas moreover, as early as 23 July, the President of the
so-called ‘United Front of Goans’ and leader of the expedition
against Dadra, publicly announced that this would take place and
that the action would be begun as soon as the necessary preparations
were completed (Observations on the Preliminary Objections,
Annex 1, Appendix 2);

Whereas the Indian Government took no step to prevent that
second expedition;

Whereas, so far from thus performing its duty towards Portugal,
it firmly opposed all communications of Portugal with the enclaves;

Whereas, while the Parties are in disagreement on the question
whether communications between Daman and the enclaves had
been completely cut before the operation against Dadra, it is in any
event certain that the isolation of the two enclaves had become
complete immediately after the occupation of Dadra and before the
expedition against Nagar-Aveli;
I4 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

12

Whereas, as from that time no further transit visa was granted,
either to Portuguese or to persons in the service of the Portuguese
Government, for the purpose of going to Dadra or to Nagar-Aveli
(Counter-Memorial, paragraph 211);

Whereas on 24 July the Portuguese Government requested the
necessary transit facilities for the despatch of reinforcements to
Dadra (Memorial, Annex 50); whereas on 26 July, while confirming
the earlier request, it asked that a few delegates of the Governor of
Daman (if necessary limited to three) should be enabled to go to
Nagar-Aveli, in order to enter into contact with the population,
examine the situation, and take the necessary measures on the spot
(Memorial, Annex 51);

Whereas, in a note of 28 July, the Government of India refused
these two requests (Memorial, Annex 52);

Whereas, at that time, the occupation of Nagar-Aveli existed only
as a threat and whereas it is consequently established that before
any occupation of the enclave, Portugal found itself completely cut
off from the enclave as a result exclusively of the will of India;

Whereas the attitude adopted by India is thus in two respects
contrary to the duty imposed upon it by international law, since
instead of protecting Portugal against the unlawful enterprise with
which the latter was threatened, it placed Portugal in a situation
in which it was impossible for that State to defend itself. against
that enterprise;

Whereas, since that date, the prohibitions imposed by India
in respect of Portuguese transit have been maintained without
exception, thus enabling those who profited by them to consolidate
their position in the enclaves;

For these reasons,
May it please the Court
To adjudge and declare

that India has not complied with the obligations incumbent
upon it by virtue of Portugai’s right of passage.

Il.—Submissions relating to the various arguments propounded by
the Indian Government as to the effect of the present circumstances on
the exercise of the right of passage

Whereas India contends, in the event of the right of passage
claimed by Portugal being upheld by the Court, that that right
cannot be exercised in the present circumstances;

Whereas, if this contention were well-founded, its only effect could
in any case be to suspend temporarily, and to the extent necessary,
the exercise of the right of passage, without affecting the existence
of that right itself;

Whereas it is clearly for India to establish the basis for its con-
tention ;

Whereas India asserts that the present situation is characterized
by a general insurrection of the population of the enclaves; whereas,
15

13

RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

however, this interpretation of the facts, which is formally challenged
by Portugal, is far from finding confirmation in the evidence supplied
by the Indian Government and whereas this interpretation, on the
contrary, runs counter to a number of factors which render that
interpretation improbable;

Whereas, furthermore, even if the existence of an insurrectional
movement were established, the legal consequences which India
seeks to deduce therefrom would nonetheless be devoid of foundation;

Whereas Portugal has never renounced its sovereignty over the
enclaves and whereas it was, from the very beginning, prevented
from taking in the enclaves the measures necessary for the restora-
tion of order;

Whereas if Portugal’s action has thus been paralysed it is because
India has opposed it by depriving the Portuguese authorities of all
communication with the enclaves;

Whereas India is therefore not entitled in any case to impair,
in any form, the right of sovereignty which belongs to Portugal alone;

Whereas it is in the light of this fundamental observation that
it is necessary to examine the various arguments propounded by the
Indian Government in support of its contention that the exercise of
the right of passage ought to be suspended in the present circum-
stances;

A. As to India’s right to adopt an attitude of neutrality in the conflict
between the lawful Government and the alleged insurgents

Whereas there has been no recognition of belligerency in the
present case;

Whereas, in the absence of such recognition, no obligation of
neutrality is incumbent upon third States, and whereas, if the latter
are entitled in such cases, in order to safeguard their interests, to
take certain measures analogous to those provided for by the regime
of neutrality, what is then involved is in any event only a right
and not a legal duty ;

Whereas India could not avail itself of that right for the purpose
of evading the obligations binding upon it as a result of Portugal’s
right of passage; and whereas any conflict between that right and
those obligations could only be resolved in favour of the obligations;

Whereas, moreover, the very concept of neutrality can clearly
only apply in a case of conflict between the lawful Government
and the insurgents if the State relying thereon is not involved in
that conflict ;

Whereas this is certainly not so in the present case, since the
cause of the so-called insurgents is merged with that of India, their
efforts being directed, through different means, to the achievement
of one and the same end, namely, the incorporation of the enclaves
in the territory of the Indian Union;

Whereas, while the sympathy felt by a State for one or the other
of two adversaries does not prevent that State from adopting an
16 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

14

attitude of neutrality in the conflict between them, the position is
not the same when the design pursued by one of them forms an
integral part of the policy openly practised by the said State; whereas
it is indeed impossible to be neutral in one’s own cause;

Whereas India cannot therefore justify a suspension of the exer-
cise of the right of passage by the argument based on its alleged
neutrality ;.

B. As to the application of the provisions of the United Nations Charter
relating to human rights and to the right of self-determination of
peoples

Whereas in cases of insurrection the rights and obligations of
foreign States in relation to the lawful Government are governed by

a body’ of rules which form a part of general international law and

whereas India is under a further obligation in relation to Portugal,

which is binding upon it as a result of Portugal’s right of passage;

Whereas India contends that the legal regime thus determined is
modified by Articles 1, 55, 56 and 62 of the United Nations Charter,
in the sense that these Articles lay upon it an obligation to ‘abstain
from action which is diametrically opposed to the whole purpose
and spirit of those Articles’ (Rejoinder, paragraph 640);

Whereas the terms in which this assertion is couched disclose the
uncertainty felt by India itself with regard to the exact scope of its
argument ;

Whereas India recognizes moreover that the principles of the
Charter te which it has referred can be regarded as ethical principles
and not as legal principles and whereas India seeks, on the other
hand, to disregard, in so far as these principles are concerned, the
provisions of Article 38, paragraph 1, of the Statute of the Court
(Rejoinder, paragraph 641);

‘Whereas these considerations would, if necessary, suffice to dispose
of its contention, since the Parties to the present dispute have only
accepted the compulsory jurisdiction of the Court subject to the
conditions laid down in the Statute of the Court;

Whereas, however, the provisions of Articles 1, 55, 56 and 62
of the United Nations Charter are not at all involved in the dispute
now before the Court;

Whereas while Portugal has a legitimate desire to restore the
order which has been disturbed by the violent action of hostile
elements which penetrated into the enclaves in 1954, it does not
propose in any way to disregard the duties laid upon it by the
United Nations Charter;

Whereas on the other hand, the Indian Government, whilst
relying on these Articles in refusing to allow Portugal to exercise
its right of passage, does not hesitate to declare that, in the event
of the populations concerned opting in favour of the maintenance
of Portuguese sovereignty, India would not be disposed to tolerate
this (declaration made on 6 September 1955 by the Prime Minister of
India before the Rajya Sabha—Observations on the Preliminary

‘Objections, Annex I, Appendix 4, p. 16), which constitutes the very

negation of the right of self-determination of peoples ;
17

15

RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

C. As to the argument that the existence in the enclaves of a provisional
de facto local government, which is not represented before the Court,
debars the Court from adjudicating, in the present circumstances,
on the Portuguese claim

Whereas this argument can find no basis either in the Statute
of the Court or in the declarations by which the Parties have accept-
ed its compulsory jurisdiction; whereas these declarations contain a
general undertaking, accompanied by certain reservations which are
exclusively confined to those expressed, none of which relates to the
contingency now contemplated by India;

Whereas, nevertheless, to justify its contention, India invokes
the principle applied by the Court in its Judgment of 15 June 1954
in the case concerning Monetary Gold removed from Rome ;

Whereas this is the principle which makes the jurisdiction of the
Court dependent upon the consent of the States concerned; whereas
this is indeed a fundamental principle which is manifestly embodied
in the Statute; whereas, however, this principle is entirely irrelevant
to the present case;

Whereas the Court is not called upon to adjudicate upon an
international dispute to which the alleged de facto government of
the enclaves is a party and in respect of which the Court cannot
therefore exercise jurisdiction without that de facto government’s
consent ;

Whereas it is not sufficient, to prevent the Court from exercising
jurisdiction, that the dispute before it should interest a third party
and that that third party should not be represented before the Court,
even if that third party be a State;

Whereas, not only can the alleged de facto government of the
enclaves not be regarded on any ground as the organ of a State but it
does not even possess international legal personality ;

Whereas it constitutes no more than a provisional de facto ad-
ministration ; and whereas such an administration possesses no legal
personality on the international plane so long as that administration
has not been recognized ;

Whereas, furthermore, the legal personality acquired by it in the
event of recognition exists only to the extent that such recognition
has granted it;

Whereas the Government of India purports to have recognized the
present administration of the enclaves as a provisional de facto
administration, but whereas this déclaration, made for the first time
in the Counter-Memorial, is incompatible with the declaration which
appears at paragraph 16 of the Preliminary Objections to the effect
that the Government of India had not up to that time had any
relations with that administration; whereas the alleged recognition
was therefore subsequent to the filing of the Preliminary Objections
(April 1957); whereas it was even subsequent to the oral argument
which took place before the Court on those Preliminary Objections
from 23 September to 11 October 1957;
18 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

16

Whereas this alleged recognition would be an implicit recognition ;
whereas it would only have been given external manifestation—apart
from the assertions made in the Counter-Memorial and in the
Rejoinder—by contacts with local officials with regard to such day-
to-day matters of administration as police, posts, transport,
etc.—which contacts are expressed to have been limited to the
indispensable minimum (Counter-Memorial, paragraph 353);

Whereas it is difficult to confer upon such contacts the status
of recognition;

Whereas that recognition, on the assumption that it was given,
could only have an extremely limited legal scope; whereas its effects
would be limited to India’s relations with the local administration in
the matters for which these contacts were made; whereas. such
recognition can certainly not be invoked as against Portugal and
cannot in any way affect either Portugal’s right of passage or the
jurisdiction of the Court in the dispute which has been regularly
brought before it;

Whereas, furthermore, this alleged recognition would only follow
from a change in India’s intentions after the argument of the Preli-
minary Objections, and whereas a party to a dispute is certainly not
entitled to modify during the course of the proceedings and to the
detriment of the other party, by a mere manifestation of will, the
conditions in which the dispute presents itself;

Whereas therefore viewed from any angle, the argument that the
Court is prevented in the present case from discharging the judicial
function conferred upon it, on the pretext that the Court is not open
to the provisional de facto adminisiration of the enclaves, must be
rejected as devoid of foundation;

D. As to the argument that the exercise of the right of passage by Portu-
gal would involve, under the present circumstances, grave dangers
to India’s public order and that India is therefore entitled to
oppose it

Whereas this argument is independent of the assertion that the
events which occurred in the enclaves amounted to an insurrection
of the local population; whereas this argument is based solely on
India’s right to preserve its internal order and on the existence of a
danger which is said seriously to threaten that order;

Whereas, as appears from paragraph 388 of the Reply, if by reason
of exceptional circumstances at any given moment the passage of
Portuguese armed forces over the few kilometres of road which lead
from Daman to the enclaves should really appear likely seriously to
disturb the public order of India, by provoking acts of violence on
its territory, Portugal would agree that passage should be tempo-
rarily suspended, to the extent necessary for the preservation of
India’s public order;

Whereas the issue is therefore whether the aforementioned con-
ditions which must be satisfied for a suspension of the passage of
armed forces have in fact been fulfilled;
19 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

17

Whereas India confines itself to the expression in this connection
of certain apprehensions the basis for which has not been established;

Whereas India invokes the risk that the so-called insurgents might
push back on to its territory any elements of the Portuguese public
forces sent to the enclaves to restore order there;

Whereas, however, India can easily protect itself against this
contingency ; whereas it undeniably has at its disposal the means to
do so; whereas its internal order could only be exposed to the danger
it refers to if it refrained from utilizing these means;

Whereas it is the more difficult to agree, in these circumstances,
that its argument has any validity, inasmuch as the prolongation
of the prohibition of passage would have for Portugal consequences
of obvious gravity which Portugal could not possibly avoid;

Whereas, if the Court should nevertheless be of opinion that, in
the present circumstances, the passage of Portuguese armed forces
should be suspended, as stated above, by reason of the danger it
would represent for the internal order of India, it is obvious that this
temporary suspension ought to end as soon as the danger justifying
that suspension disappears;

Whereas, for its part, India would naturally have the duty not to
take any measure which might consolidate the position of the ad-
versaries of the lawful Government in the enclaves; whereas it is
indeed inconceivable that India should take advantage of the sus-
pension in order to further the aggravation or prolongation of the
circumstances relied upon in support of that claim;

For these reasons,

May it please the Court

(a) to hold that the arguments of India set out above under A,
B and C are without foundation;

(8) as to the argument of India set out above under D:

1. If the Court is of opinion that the above-mentioned conditions
which must be satisfied to justify the suspension of the passage of
Portuguese armed forces are not fulfilled,

To adjudge and declare

That India must end the measures by which it opposes the exercise
of the right of passage of Portugal;

2. If the Court is of opinion that the above-mentioned conditions
which must be satisfied to justify the suspension of the passage of
Portuguese armed forces are fulfilled,

To adjudge and declare

That the said passage shall be temporarily suspended; but that
this suspension shall end as soon as the course of events discloses
that the justification for the suspension has disappeared ;

That during such suspension, India must abstain from any measure
which might strengthen the position of the adversaries of the lawful
Government in the enclaves and thus provoke the aggravation or
20 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

18

prolongation of the circumstances relied upon in support of that
suspension ; .

That there is no legitimate reason entitling India to ask that the
other forms of the exercise of the right of passage should likewise be
suspended.

III.— Submissions relating to the Preliminary Objections of India

A. As to the fifth objection

Whereas the fifth of the Preliminary Objections raised by India
was designed to secure a finding by the Court that the dispute is
not within the Court’s jurisdiction on the ground that it relates to a
question which, according to international law, falls exclusively
within the jurisdiction of India, and that the Declaration of 28 Feb-
ruary 1940, by which India accepted the compulsory jurisdiction
of the Court, excludes such disputes from the Court’s jurisdiction ;

Whereas, by its Judgment of 26 November 1957, the Court decided
to join this objection to the merits;

Whereas it is clear from the arguments that Portugal’s claim is
based on international law; whereas all the titles relied upon in
respect of that claim fall within the domain of international law;
and whereas the validity of these titles has been fully established;

Whereas the question involved in this dispute is therefore certain-
ly not a question which, according to international law, falls within
the exclusive jurisdiction of India;

For these reasons,
May it please the Court
To dismiss the Objection.

B.. As to the sixth objection

Whereas the sixth of the Preliminary Objections raised by India
was designed to secure a finding by the Court that the dispute does
not fall within the jurisdiction of the Court, by virtue of the reser-
vation ratione temporis in the Declaration of 28 February 1940,
under which India accepted the jurisdiction of the Court in respect of
disputes ‘arising after 5 February 1930, with regard to situations or
facts subsequent to that date’;

Whereas, by its Judgment of 26 November 1957, the Court decided
to join this objection to the merits;

Whereas in the Preliminary Objections of the Indian Government
this objection was solely based on the second part of the aforemen-
tioned reservation, that Government recognizing that the dispute was
subsequent to 5 February 1930, whilst contending that it related
to situations or facts prior to that date;

Whereas it was only in the course of the oral argument onthe
Preliminary Objections, in the Oral Reply of the Attorney-General of
India (Oral Proceedings, pp. 213-221) that an objection based on the
first part of the aforementioned reservation was raised, i.e. an
objection based on the ground that the dispute allegedly arose before
5 February 1930;
21

RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

Whereas, quite apart from this consideration, neither the ob-
jection based on the first part of the reservation nor the objection
based on the second part of the reservation, can be accepted;

Whereas the dispute referred to the Court is in fact subsequent
to 5 February 1930, since the dispute dates from 1954, the year in
which the divergence of views, which constitutes the dispute, arose
between the Portuguese Government and the Indian Government;

Whereas furthermore the situations or facts in respect of which
the dispute arose are likewise subsequent to 5 February 1930, since
they also date from 1954;

Whereas these situations or facts are really nothing but those
giving rise to the dispute and, whereas one must regard as such the
situations or facts imputed by the applicant State to the respondent
State as unlawful, i.e. as constituting violations of the respondent
State’s international obligations;

Whereas the situations or facts which Portugal imputes to the
Indian Union as unlawful also date from 1954, as has already been
pointed out;

For these reasons,
May it please the Court
To dismiss the Objection.”

Ox behalf of the Government of India,
in the Counter-Memorial:

“May it please the Court to declare that it has no jurisdiction to
decide on the claim presented by the Portuguese Government, and,
in the alternative, to declare the claim ill-founded.”

As final Submissions filed on 21 October 1959:

19

“Having regard to the Submissions presented at the hearing of
6 October 1959 by the Agent for Portugal,

Whereas, by its Judgment of 26 November 1957, the Court joined
to the merits the consideration of the Fifth and Sixth Preliminary
Objections;

I.—As to the Fifth Objection

Whereas, if its examination of the merits should lead the Court to
a finding that Portugal has not established the existence of the titles
which she has invoked, and that these titles must accordingly be
regarded as non-existent, it must follow that the question of the
grant or refusal of the passage claimed over Indian territory falls
exclusively within the domestic jurisdiction of India and that the
dispute is outside the jurisdiction of the Court;

II.—As to the Sixth Objection

Whereas the Indian declaration of acceptance of the compulsory
jurisdiction expressly provides that only disputes arising after
5 February 1930 and with regard to situations or facts subsequent
to the same date may be submitted to the jurisdiction of the Court;
22 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. I2 IV 60)

20

Whereas, according to the Submissions filed by the Agent for
Portugal on 6 October 1959, and the explanations given in the course.
of the Oral Proceedings by Counsel for Portugal the object of the
Portuguese claim is (1) recognition of the right which Portugal
claims to possess to pass over Indian territory to the extent necessary
for the exercise of her sovereignty over the enclaves of Dadra and
Nagar-Aveli (2) a finding of India’s failure to respect the obligation
binding upon her as the result of that alleged right (3) an injunction
to India that she should re-establish the right of passage or, in the
alternative, in the event of its being found that the exercise of that
right was rightfully suspended in respect of Portuguese armed forces,
to limit the suspension in its scope and in its duration while refraining
from consolidating the situation justifying that suspension;

Whereas the above-mentioned second and third objects of the claim
are manifestly ancillary to the first, their consideration being sub-
ject to the existence of the right of passage defined under (1);

Whereas claims relating to the passage were raised by Portugal
before 5 February 1930 and whereas the situation to which the
titles now invoked by Portugal refer was repeatedly the subject of
difficulties prior to 5 February 1930;

Whereas the dispute referred to the Court by Portugal accord-
ingly fails to satisfy either of the two time conditions to which the
Indian Union made its acceptance of the compulsory jurisdiction
of the Court subject; :

IlI.—On the merits
A. As to the right claimed and tts basis

Whereas the right claimed by Portugal has been presented as a
right of passage relating to private persons and to goods as well as
to official organs and armed troops, limited to the needs of the exer-
cise of Portuguese sovereignty and subject to the restrictions and
regulations prescribed by the Indian Union, the sovereign in the
intermediate territory, without any claim by Portugal to any
immunity ;

Whereas the right as thus defined and the correlative obligation
contain such contradiction and lack of precision that their judicial
recognition would appear to be impossible;

whereas in particular the concept of the essential needs for the
maintenance of Portuguese sovereignty does not provide the Parties
with an objective criterion enabling them to arrive at a common
appreciation or making it possible for some arbitral or judicial body
to decide as between them in the event of a divergence of opinion ;

whereas moreover it is difficult to see how such a concept of
the requirements of sovereignty could lead to any right of passage
for private persons and goods in whose favour the enjoyment of the
right is however still claimed although the exercise of Portuguese
sovereignty in the enclaves is manifestly paralysed;

whereas similarly the statement by Portugal that the right of
passage claimed includes no immunity is incompatible with the
23 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

21

character of a State organ which necessarily attaches to armed mili-
tary forces under command passing through foreign territory;

whereas it is unimaginable that a right of passage can be recog-
nized generally, even within the limits required by the needs of
the applicant State, without any regard to the objections of the
State through which passage is to be effected; whereas in the third
part of her Submissions Portugal indeed recognizes that the interests
of the State through which passage is to be effected entitle it some-
times to refuse to permit the exercise of the right claimed; whereas
there is not however any trace of any such limitation in the definition
proposed which must accordingly be rejected as unacceptable also
on that ground;

Whereas it is self-evident that a right which is so contradictory
and the content of which is so indeterminate and indeterminable
can find no basis in any of the general or particular titles alleged by
Portugal, that is to say, either in general custom, or in the principles
of international law which can be derived therefrom, or in the general
principles of law recognized by civilized States, or in particular
agreements, or in local custom which, if it exists, must be assimilated
to the particular agreements;

Whereas reliance has wrongly been placed upon the respect due
to the sovereignty of Portugal in the enclaves;

whereas the sovereignty invoked is essentially territorial and
does not in itself involve any right whatsoever upon Indian territory ;

Whereas Portugal is equally unfounded in her reliance upon
recognition of Portuguese sovereignty in the enclaves, either con-
tained in a treaty of 1779 negotiated by Portugal with the Maratha
Empire, or flowing from the attitude of the British or Indian Gov-
ernments between 1818 and 1954;

Whereas the negotiations of 1779 never resulted in an agreement
and whereas the draft treaty in contemplation in any event involved
no transfer of sovereignty ;

Whereas if it is true that sovereignty over the enclaves was
subsequently usurped by Portugal, this could not give rise to an
right of passage; :

Whereas even if this were not the case it has been clearly
“established in the written proceedings that recognition of the fact
of Portuguese sovereignty was never at any time accompanied by
recognition of any obligations whatsoever with regard to the alleged
tight of passage;

whereas from 1818 to 1954 the Governments of Great Britain or
of India granted or refused passage as they saw fit;

whereas the particular agreements concluded on this subject with
Portugal in 1819, 1844, 1861, 1879, 1893, 1913, 1920 and 1940 were
concluded for a short period, or were revocable, their content being
always limited and very far removed from the definition of the right
now proposed by Portugal;
24 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. I2 IV 60)

22

whereas it accordingly appears that apart from the brief periods
during which these agreements were in force Great Britain and India.
retained in respect of passage a discretionary competence without
any sort of limitation; |

whereas the course thus adopted by Great Britain and by India
in no way diverged from the usual practice followed by the Gov-
ernments of other States having foreign enclaves within their
territory;

Whereas, far from revealing the existence of a general customary
rule in conformity with the claims of Portugal relating to a right of
passage, an examination of the practice followed, and in particular
of the agreements which have been concluded on this subject, estab-
lishes the categorical refusal of States to be bound by formal under-
takings either with regard to the transit of goods where the enclave
is included within the customs regime of the State through which pas-
sage is to be effected, or with regard to the transit of armed forces
at least where those forces exceed a given number, or wheïe the
passage is designed to prevent or to put down political, social or
economic disturbances.

B. As to the violation of the alleged right in July-August 1954

Whereas the non-existence of the right claimed is sufficient in law.
to dispose of the complaint of its violation;

Whereas the Indian Union however desires indignantly to reject
the accusation of having used its discretionary competence, in re-
spect of the passage of Portuguese troops, to assist the overthrowing
of Portuguese power in pursuance of annexationist designs;

Whereas the Indian Government and people have doubtless never
concealed their desire that the Goans should be allowed to join the
Union of Independent India to which they are attached ethnically
and culturally, whereas however the Indian Government has always
said with equal force that that reunion must be achieved without
violence; whereas it is difficult to see why any different attitude
should have been adopted with regard to the enclaves which are of
negligible political and economic importance to India;

Whereas the restrictions imposed by India at the end of 1953
and the beginning of 1954 on the passage to the enclaves of Portu-
guese agents are fully explicable on the ground of the determina-
tion of the Government of New Delhi to answer the restrictive
measures adopted by the Goan administration in respect of Indian
nationals, by its concern not to assist the extension to the enclaves
of the reign of terror brought into being in Goa by the Portuguese
authorities to prevent and put down by violence any manifestation
of Indian national sentiment, and by its decisién to forbid passage
over Indian territory to Portuguese officials who had demonstrated
their contempt for the Asians;

Whereas Portugal likewise wrongly maintains that the Govern-
ment of India must have foreseen the coup which occurred at Dadra

on 22 July 1954;
25

23

RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

whereas the manifesto of the Goan National Movement of 2 July
which has been relied upon does not in fact contain the slightest
indication to that effect and whereas the Portuguese authorities
refrained from communicating to India any information gathered
on this point by their intelligence services with regard to what was
being prepared;

Whereas the liberation of Dadra was a matter of a few minutes
only, whereas quite naturally it immediately gave rise to a great
stirring of the people in the neighbouring enclave of Nagar-Aveli, but
whereas in that enclave the insurgents encountered scarcely any
resistance, the Portuguese authorities having decided on 1 August
to evacuate the capital, Silvassa, and to withdraw into Indian terri-
tory ‘to avoid an encounter’ ; ;

Whereas once the liberation movement had been begun at Dadra,
the Indian Union was entitled, both in accordance with the principle
of international law of non-intervention and out of regard for the
right of self-determination of peoples recognized by the Charter, to
refuse the Portuguese authorities authorization for the passage of
reinforcements assuming that any had been available;

Whereas finally it is not reasonably possible to describe the events
which occurred in the enclaves as ‘invasion’ or foreign ‘occupation’,
when the few individuals, who in fact came from outside to Dadra
and Nagar-Aveli to support the liberation movement, were for the
most part Goans, that is, the compatriots and the kith of the inhab-
itants, whereas the majority of these left the enclaves a few days
after having entered them, whereas the independent administration
which was then constituted and.which has since functioned, is in
large part composed of people born in the enclaves or who have for
a long time resided there, and whereas the sympathies of the inhab-
itants for the nationalist movement had as early as 1931 and on
diverse occasions since then been noted by the Portuguese admini-
strators;

Whereas it follows from the considerations set out above that no
complaint can be made against the Indian Union on the ground of
the use it made of its discretionary competence in refusing passage
over its territory to the agents of the Portuguese State in July 1954.

C. As to the claim for an injunction

Whereas this claim implies that since July/August 1954 the Indian
Union has violated its international obligations relating to transit
by refusing Portugal permission for the passage over Indian territory
of the armed forces necessary to re-establish her authority in the
enclaves;

Whereas the reasons indicated above in refutation of the accusa-
tion of violation in respect of the period July/August 1954 are suffi-
cient to dispose of the complaint formulated with regard to the
subsequent period;

Whereas moreover even if obligations with regard to passage had

in the past been binding upon India, they should be regarded as
having lapsed as a result of the change which has occurred in the
26 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. I2 IV 60)

24

essential circumstances, in particular by reason of the formation at
Silvassa of an independent local administration;

Whereas the existence and the stabilization of that administration
can only have served to reinforce the propriety of the attitude of
non-intervention adopted by India in the conflict between that
administration and Portugal;

Whereas this fact is equally one which must hold the attention
of the Court whose decision would run counter to the interests of
justice if, without a hearing, it were to condemn to extinction the
independent entity which has been constituted;

Whereas finally there can be no doubt that a restoration of the
Portuguese power in the enclaves brought about by force of arms
would encounter desperate resistance on the part of a population
rejoicing in the political, economic, social and cultural progress
which it has enjoyed for five years;

whereas the fighting to which such resistance would give rise
could not fail to extend to the surrounding Indian territory, the
population of which would feel solidarity with the resistance and
whereas this would result in an undoubted threat to the internal
order and external peace of the Indian Union;

Whereas this situation should in itself suffice according to the
Submissions of Portugal themselves to bring about the rejection of
the claim for an injunction;

D. As to the alternative claim for an injunction

Whereas in the absence of the re-establishment of the alleged
right of passage relating to armed forces, Portugal claims:

(a) that the suspension of the alleged right be declared to be limited
to the continuation of the situation justifying it;

(b} that India be prohibited from taking any action which might
strengthen the position of the adversaries of the Portuguese
regime in the enclaves,

(c) that the suspension of the alleged right of passage be limited
to the armed forces,

Whereas none of these claims would appear to be justified;

(a) whereas in the event of the right of passage being recognized
by the Court which should at the same time declare its exercise
to be suspended, it is difficult to see any point in accepting the
temporary character of that situation since it would appear
to be impossible to foresee and to define the various events
capable of putting an end to it;

(b) whereas it would likewise appear to be inadmissible to seek by
means of a judicial decision to prevent in perpetuity any evolution
of the situation in a sense unfavourable to the restoration of
the Portuguese regime or to regulate the relationships which the
Indian Union inevitably has with the population and the admin-
istration of enclaves integrated in its economic system;

(c) whereas finally the concern manifested by Portugal with regard
to the passage of private persons and of goods—more than ever
unconnected with the exercise of a sovereignty recognized to be
27 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. I2 IV 60)

paralysed—would appear to be all the less justified inasmuch
as the regulation of the passage of goods has not undergone any
change and that the passage of private persons encounters no
impediment save those brought about by the Portuguese author-
ities at Daman.
For these reasons and all others advanced in the pleadings and
oral arguments submitted by the Indian Union

May it please the Court

To hold that it is without jurisdiction
In the alternative

to hold that the claim is unfounded.”

*
* *

The present dispute was referred to the Court by an Application
filed on 22 December 1955.

In that Application the Government of the Portuguese Republic
states that the territory of Portugal in the Indian Peninsula is made
up of the three districts of Goa, Daman and Diu. It adds that the
district of Daman comprises, in addition to its littoral territory,
two parcels of territory completely surrounded by the territory of
India which constitute enclaves: Dadra and Nagar-Aveli. It is in
respect of the communications between these enclaves and Daman
and between each other that the question arises of a right of passage
in favour of Portugal through Indian territory, and of a correlative
obligation binding upon India. The Application states that in July
1954, contrary to the practice hitherto followed, the Government of
India, in pursuance of what the Application calls “the open cam-
paign which it has been carrying on since 1950 for the annexation
of Portuguese territories’, prevented Portugal from exercising this
right of passage. This denial by India having been maintained, it
has followed, according to the Application, that the enclaves of
Dadra and Nagar-Aveli have been completely cut off from the rest
of the Portuguese territory, the Portuguese authorities thus being
placed in a position in which it became impossible for them to
exercise Portuguese rights of sovereignty there.

It is in that situation, and in order to secure a remedy therefor,
that Portugal has referred the matter to the Court.

*
* *

The questions submitted to the Court have been argued at length
by the Parties in the course of the proceedings. Their final formu-
lation is to be found in the Submissions by which each of the Parties
has stated what it asks the Court to adjudge and declare.

Since Portugal is the Applicant, it is in its Submissions that the
formulation of the claims on which the Court must adjudicate is
to be sought. Furthermore, subject to what will be said with regard

25
28 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

to the jurisdiction of the Court, India has confined itself in its Sub-
missions on the merits to adopting the negative position of request-
ing the Court “‘to hold that the claim is unfounded”’.

*
* *

The Submissions presented by Portugal in the Application
request the Court in the first place “To recognize and declare that
Portugal is the holder or beneficiary of a right of passage”, the
characteristics of which are set forth. In the course of the proceed-
ings stress was laid by both Parties on the importance of this
claim and the answer to be given to it.

This claim was repeated in the Submissions filed on 6 Octo-
ber 1959 on behalf of the Government of Portugal. The Court was
there asked:

“To adjudge and declare

That the right of passage between the enclaves of Dadra and
Nagar-Aveli and between these enclaves and the coastal district
of Daman, as defined above, is a right possessed by Portugal and
which must be respected by India.”

Thus formulated, the claim reveals both the right claimed by
Portugal and the correlative obligation binding upon India.

But, as thus formulated, the claim requires clarification of its
subject-matter, since it contains a reference to the grounds relied
upon in its support. It is clear from this reference that the right of
passage is invoked by Portugal “only to the extent necessary for
the exercise of Portuguese sovereignty over the enclaves’’. It is not
contended that passage is accompanied by any immunity in favour
of those who effect it. It is made clear that such passage remains
subject to the regulation and control of India, which must be
exercised in good faith, India being under an obligation not to
prevent the transit necessary for the exercise of Portuguese sover-
eignty over the enclaves.

The Court must adjudicate upon the claim as thus presented,
stating whether the right invoked by Portugal is or is not a right
possessed by that State. But with reference to what date must the
Court ascertain whether the right invoked by Portugal exists or
does not exist?

If the date selected is the eve of the events of 1954 which brought
about a new situation which has since prevented the exercise by
Portugal of its authority in the enclaves without, however, having
substituted therefor that of India, the factors relevant for the guid-
ance of the Court in its decision will be those existing on the eve
of those events. If, on the other hand, the issue is viewed as it
stands at the date of the present Judgment, it will be necessary
to take into account—whatever may be their weight —the argu-

20
29 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

ments of India designed to establish that the right of passage,
assuming it to have existed previously, came to an end as a result
of the events of 1954 and has lapsed in the present circumstances.

Portugal has not indicated which date is the relevant one in this
connection and, having regard to its silence on the point, the in-
clination might be to regard as the relevant date that of the Appli-
cation or that of the Judgment. But this would fail to take into
account the circumstances in which the question of the existence
of a right of passage was put to the Court.

That question was put to the Court in respect of the dispute which
has arisen between India and Portugal with regard to obstacles
placed by India in the way of passage. Portugal—and this was the
immediate purpose of the Application—sought a finding as to the
character, in its opinion unlawful, of these obstacles. It was in
support of this contention that it invoked its right of passage and
asked the Court to declare the existence of that right. This being so,
it is the eve of the creation of these obstacles that must be selected
as the standpoint from which to ascertain whether or not Portugal
possessed such a right.

This will leave open the arguments of India regarding the sub-
‘ sequent lapse of the right of passage and of the correlative obliga-
tiom. It is in connection with what may have to be decided, not as
to the past, but as to the present and the future, that these argu-
ments may, if such questions arise, be taken into consideration.

Accordingly the first question with regard to which the Submis-
sions of Portugal call upon the Court to decide is whether, on the
eve of the events which occurred at Dadra and at Nagar-Aveli in
1954, Portugal had a right of passage over the territory of India to
the extent necessary for the exercise of Portuguese sovereignty over
the enclaves, which right was subject to the regulation and control
of India.

Portugal asks the Court to hold that it had this right. India asks
it to hold that the claim is unfounded.

* * *

To this first claim Portugal adds two others, though these are
conditional upon a reply, wholly or partly favourable, to the first
claim, and will lose their purpose if the right alleged is not recog-
nized. The formulation of these two claims, also, is to be sought in
the Submissions filed on behalf of Portugal on 6 October 1959.

Portugal asks the Court in the first place:

“To adjudge and declare
That India has not complied with the obligations incumbent upon
it by virtue of Portugal’s right of passage.”

This claim specifically refers to the obligations devolving upon
India as a result of Portugal’s right of passage, and for this reason

27
30 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

it must be considered and decided by the Court, if the Court recog-
nizes the said right of passage.

However, the grounds set forth in support of this claim include
certain considerations which go beyond its subject-matter. Refer-
ence is made to the circumstances in which the alleged breach is
said to have occurred. Mention is made of the events leading to the
overthrow of Portuguese authority at Dadra and Nagar-Aveli in
July and August 1954 brought about, in particular, by the action
of elements coming from Indian territory. In this connection allu-
sion is made to India’s failure to respect the obligation, said to be
binding on it under general international law, to adopt suitable
measures to prevent the incursion of subversive elements into the
territory of another State. With regard to the events of July 1954,
it is stated among the grounds in support of the Portuguese Sub-
missions that ‘‘the threat of action directed against the Portuguese
territories of India could not be a matter of which the Indian
Government was unaware’; that “it was clearly incumbent upon
the Indian Government to take the measures which lay in its power
to prevent the realization of such a design”; that “the Indian
Government took no such measures”; that, following the public
announcement of an expedition by the “United Front of Goans”
against Nagar-Aveli, ‘the Indian Government took no step to
prevent that second expedition”; and that, ‘‘so far from thus per-
forming its duty towards Portugal, it firmly opposed all communi-
cations of Portugal with the enclaves”. All this is stated, not merely
to demonstrate in what circumstances India impeded or prohibited
passage by Portugal, but also to demonstrate that, as well as failing
to respect its special obligation in the matter of passage, India was
in breach of a general obligation under international law; and the
grounds in support of the Submissions make this clear by adding,
after the description of the events of that time, that “the attitude
adopted by India is thus in two respects contrary to the duty im-
posed upon it by international law, since instead of protecting
Portugal against the unlawful enterprise with which the latter was
threatened, it placed Portugal in a situation in which it was im-
possible for that State to defend itself against that enterprise’.

In terms much more definite even than the above, Counsel for
Portugal, speaking at the hearing of 29 October 1959, accused India
of failure to fulfil its international obligations by tolerating on its
territory enterprises directed against Portuguese authority. at
Dadra, and later at Nagar-Aveli. India denied this and, more
particularly in the grounds set forth in answer to Portugal’s second
Submission, “indignantly” rejects the accusation thus brought
against it, and explains what course it actually followed.

The Court is not required to deal with this issue, for it has not
been asked, either in the Application or in the final Submissions of
the Parties, to decide whether or not India’s attitude towards those
who instigated and brought about the events which occurred in

28
3I RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. I2 Iv 60)

1954 at Dadra and Nagar-Aveli constituted a breach of its obli-
gations under international law. The Court is only asked to adjudi-
cate upon the compatibility of India’s action with the obligations
resulting from Portugal’s right of passage. It is not asked to deter-
mine whether India’s conduct was compatible with any other obli-
gation alleged to be imposed upon it by international law.

This limitation derives from the very terms of the second claim
advanced by Portugal.

* * *

After setting forth these two claims, which refer, implicitly or
explicitly, to the past—that is, to the legal situation as it existed in
1954 and to India’s actions at that time—Portugal’s Submissions
follow the course adopted in the Application and the Memorial,
but with greater complexity ; they turn to the present and the future,
requesting the Court to determine certain measures to be adopted
in the event of a decision recognizing the right claimed by Portugal
and finding that India has committed a breach of its correlative
obligation. In this connection the Application and the Memorial
had merely sought respectively a decision by the Court, and a call
by the Court to India, designed to secure the termination of the
unlawful state of affairs resulting from India’s alleged infringement
of Portugal’s right. In the Submissions filed on behalf of the Govern-
ment of Portugal on 6 October 1959, this claim is put forward in an
alternative form depending upon whether or not the Court holds
that there should be a temporary suspension of the right of passage.
If the Court is not of opinion that there should be such a suspension,
it is asked to decide “‘that India must end the measures by which it
opposes the exercice of the right of passage of Portugal”. If the
Court is of opinion that there should be a temporary suspension
of the right of passage, it is asked to hold now that ‘‘this suspension
shall end as soon as the course of events discloses that the justifi-
cation for the suspension has disappeared’’.

Before putting forward its third claim, Portugal raised another
point. It invited the Court “‘to hold that the arguments of India ...
are without foundation” on three points. These are arguments
selected from the contentions by which India opposes the claims
made by Portugal regarding the decision it seeks as to the future
effect of the right of passage. These arguments relate to:

(1) ‘India’s right to adopt an attitude of neutrality in the con-
flict between the lawful Government and the alleged insurgents’”’;

(2) “The application of the provisions of the United Nations
Charter relating to human rights and to the right of self-determin-
ation of peoples”;

(3) The bar constituted by “‘the existence in the enclaves of
a... local government which is not represented before the Court” to

29
32 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. I2 IV 60)

the Court’s ‘‘adjudicating, in the present circumstances, on the
Portuguese claim”.

It goes without saying that the Court would take such argu-
ments into consideration in the reasons for its Judgment if it re-
garded any of them as likely to assist it in arriving at the deci-
sion it is called upon to take. But it is no part of the judicial func-
tion of the Court to declare in the operative part of its Judgment
that any of those arguments is or is not well-founded.

*
* *

Before proceeding to the consideration of the merits, the Court
must ascertain whether it has jurisdiction to do so, a jurisdiction
which India has expressly contested.

Following upon the Application instituting proceedings by Portu-
gal filed on 22 December 1955, the Court was seised of six preli-
minary objections raised by the Government of India. By a Judg-
ment given on 26 November 1957 the Court rejected four of them
and joined to the merits the two others, by which the Government
of India continued to dispute the jurisdiction of the Court to deal
with the present case.

The Court has first to adjudicate upon these two objections,
which, as originally submitted, constituted the Fifth and Sixth Pre-
liminary Objections. .

ae
+ *

In its Fifth Preliminary Objection the Government of India
relied upon the reservation which forms part of its Declaration of
28 February 1940 accepting the jurisdiction of the Court and which
excludes from that jurisdiction disputes with regard to questions
which by international law fall exclusively within the jurisdiction
of India. The Government of India argues that on that score the
present dispute is outside the jurisdiction of the Court.

In support of its challenge of the jurisdiction the Government of
India contended, in the grounds in support of its Submissions of
21 October 1959, that:

“if its examination of the merits should lead the Court to a finding
that Portugal has not established the existence of the titles which
she has invoked, and that these titles must accordingly be regarded
as non-existent, it must follow that the question of the grant or
refusal of the passage claimed over Indian territory falls exclusively
within the domestic jurisdiction of India...’”’.

That statement admits of no dispute, but it cannot be inferred
therefrom, as the Indian Government does, that the Court has no
jurisdiction, since the statement proceeds from a finding by the
Court that the titles invoked by Portugal are invalid. The Court

30
33 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 Iv 60)

can only arrive at that finding after first establishing its competence
to examine the validity of these titles.

In the present case Portugal is claiming a right of passage over
Indian territory. It asserts the existence of a correlative obligation
upon India. It asks for a finding that India has failed to fulfil that
obligation. In support of the first two claims it invokes a Treaty of
1779, of which India contests both the existence and the interpre-
tation. Portugal relies upon a practice of which India contests not
only the substance, but also the binding character as between the
two States which Portugal seeks to attach to it. Portugal further
invokes international custom and the principles of international
law as it interprets them. To contend that such a right of passage
is one which can be relied upon as against India, to claim that such
an obligation is binding upon India, to invoke, whether rightly or
wrongly, such principles is to place oneself on the plane of inter-
national law. Indeed, in the course of the proceedings both Parties
took their stand upon that ground and on occasion expressly said
so. To decide upon the validity of those principles, upon the exis-
tence of such a right of Portugal as against India, upon such obli-
gation of India towards Portugal, and upon the alleged failure to
fulfil that obligation, does not fall exclusively within the jurisdiction
of India.

The Fifth Objection cannot therefore be upheld.

*
* *

The Sixth Preliminary Objection by which India has challenged
the jurisdiction of the Court likewise relates to a limitation of
India’s acceptance of the jurisdiction of the Court, as set out in
its Declaration of 28 February 1940.

By the terms of that Declaration India accepted the jurisdiction
of the Court ‘over all disputes arising after February 5th, 1930,
with regard to situations or facts subsequent to the same date”.
India contends that the present dispute does not satisfy either of
the two conditions stated and that the Court is therefore without
jurisdiction.

In order to form a judgment as to the Court’s jurisdiction it is
necessary to consider what is the subject of the dispute.

A passage in the Application headed “Subject of the Dispute”
indicates that subject as being the conflict of views which arose
‘between the two States when, in 1954, India opposed the exercise
of Portugal’s right of passage. If this were the subject of the dis-
pute referred to the Court, the challenge to the jurisdiction could
not be sustained. But it appeared from the Application itself and it
was fully confirmed by the subsequent proceedings, the Submissions
of the Parties and statements made in the course of the hearings,
that the dispute submitted to the Court has a threefold subject:

31
34 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

(1) The disputed existence of a right of passage in favour of
Portugal;

(2) The alleged failure of India in July 1954 to comply with its
obligations concerning that right of passage;

(3) The redress of the illegal situation flowing from that failure.

The dispute before the Court, having this three-fold subject,
could not arise until all its constituent elements had come into
existence. Among these are the obstacles which India is alleged to
have placed in the way of exercise of passage by Portugal in 1954.
The dispute therefore as submitted to the Court could not have
originated until 1954. Thus it satisfies the time-condition to which
the Declaration of India made its acceptance of the jurisdiction
of the Court subject.

Even if we consider only the part of the dispute relating to the
Portuguese claim, which India contests, to a right of passage over
Indian territory, the position is the same. It is clear from the
material placed before the Court that before 1954, passage was effect-
ed in a way recognized as acceptable to both sides. Certain incidents
occurred, but they did not lead the Parties to adopt clearly-defined
legal positions as against each other. The ‘conflict of legal views’’
between Parties which the Permanent Court of International
Justice in the case of the Mavrommatis Palestine Concessions
(Series A, No. 2, p. 11) includes in its definition of a dispute had not
yet arisen. This is clear in particular from statements made by
Counsel for India at the hearings of 15 October and 3 November,
and by Counsel for Portugal at the hearing of 28 October 1959.

Accordingly there is no justification for saying that the dispute
before the Court arose before 5 February 1930. There is not there-
fore, so far as the date of the birth of the dispute is concerned,
any bar to the jurisdiction of the Court.

But India further contends that the dispute is one with regard
to facts and situations prior to that date and that this takes it
outside the jurisdiction of the Court. ~

On the point here under consideration, the Declaration of
28 February 1940, by which India has accepted the jurisdiction of
the Court, does not proceed on the principle of excluding from that
acceptance any given disputes. It proceeds in a positive manner on
the basis of indicating the disputes which are included within that
acceptance. By its terms, the jurisdiction of the Court is accepted
“over all disputes arising after February 5th, 1930, with regard to
situations or facts subsequent to the same date”.

In accordance with the terms of the Declaration, the Court must
hold that it has jurisdiction if it finds that the dispute submitted to
it isa dispute with’ regard to a situation subsequent to 5 Febru-
ary 1930 or is oné with regard to facts subsequent to that date.

32
35 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. I2 IV 60)

The facts or situations to which regard must be had in this con-
nection are those with regard to which the dispute has arisen or,
in other words, as was said by the Permanent Court in the case
concerning the Electricity Company of Sofia and Bulgaria, only
“those which must be considered as being the source of the dispute”,
those which are its ‘‘real cause”. The Permanent Court, in this
connection, was unwilling to regard as such an earlier arbitral award
which was the source of the rights claimed by one of the Parties,
but which had given rise to no difficulty prior to the facts consti-
tuting the subject of the dispute. “It is true”, it said, “that a
dispute may presuppose the existence of some prior situation or
fact, but it does not follow that the dispute arises in regard to that
situation or fact.” (Series A/B, No. 77, p. 82.) The Permanent Court
thus drew a distinction between the situations or facts which con-
stitute the source of the rights claimed by one of the Parties and
the situations or facts which are the source of the dispute. Only
the latter are to be taken into account for the purpose of applying
the Declaration accepting the jurisdiction of the Court.

The dispute submitted to the Court is one with regard to a
situation and, at the same time, with regard to certain facts: on
the one hand there is the situation of the Portuguese enclaves within
the ,territory of India, which gave rise to the need for a right of
passage for Portugal and to its claim to such a right; on the other
hand there are the facts of 1954 which Portugal advances as showing
the failure of India to comply with its obligations, infringements
of that right.

Up to 1954 the situation of those territories may have given rise
to a few minor incidents, but passage had been effected without
any controversy as to the title under which it was effected. It was
only in 1954 that such a controversy arose and the dispute relates
both to the existence of a right of passage to go into the enclaved
territories and to India’s failure to comply with obligations which,
according to Portugal, were binding upon it in this connection. It
was from all of this that the dispute referred to the Court arose;
it is with regard to all of this that the dispute exists. This whole,
whatever may have been the earlier origin of one of its parts, came
into existence only after 5 February 1930. The time-condition to
which acceptance of the jurisdiction of the Court was made subject
by the Declaration of India is therefore complied with.

A finding that the Court has jurisdiction in this case will not
involve giving any retroactive effect to India’s acceptance of the
compulsory jurisdiction, an effect against which the Permanent
Court, in the Phosphates in Morocco case, sought to utter a warning
as one which would be in conflict with the intention which led to
such acceptance (Series A/B, No. 74, p. 24). The Court indeed will
only have to pass upon the existence of the right claimed by Portu-
gal as at July 1954, upon the alleged failure of India to. comply
with its obligations at that time and upon any redress in respect of

33
36 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. I2 IV 60)

such a failure. The Court has not been asked for any finding whatso-
ever with regard to the past prior to 5 February 1930.

It would be idie to argue that the contentions put forward with
regard to the existence of a right of passage would, if that question
had been argued before 1930, have been the same as when it is
today. Apart from the fact that that consideration relates only to
a part of the present dispute, it overlooks the fact that the condition
to which the Court’s jurisdiction is subject does not relate to the
nature of the arguments susceptible of being advanced. The fact
that a treaty, of greater or lesser antiquity, that a rule of inter-
national law, established for a greater or lesser period, are invoked,
is not the yardstick for the jurisdiction of the Court according to
the Indian Declaration. That Declaration is limited to the require-
ment that the dispute shall concern a situation or facts subsequent to
5 February 1930: the present dispute satisfies that requirement.

The Court is therefore of opinion that the Sixth Objection should
not be upheld and, consequently, it is of opinion that it has juris-
diction to deal with the present dispute.

* * *

The Court will now proceed to consider the merits.

It follows from what has been indicated above, that the Court
has only three questions to consider on the merits:

(1) The existence in 1954 of a right of passage in Portugal’s
favour to the extent necessary for the exercise of its sovereignty
over the enclaves, exercise of that right being regulated and con-
trolled by India;

(2) Failure by India in 1954 to fulfil its obligation in regard to
that right of passage;

_ (3) In the event of a finding of such failure, the remedy for the
resulting unlawful situation.

Portugal claims a right of passage between Daman and the en-
claves, and between the enclaves, across intervening Indian terri-
tory, to the extent necessary for the exercise of its sovereignty over
the enclaves, subject to India’s right of regulation and control of
the passage claimed, and without any immunity in Portugal’s
favour. It claims further that India is under obligation so to exer-
cise its power of regulation and control as not to prevent the pas-
sage necessary for the exercise of Portugal’s sovereignty over the
enclaves.

India contends that theright claimed by Portugal is too vague and
contradictory to enable the Court to pass judgment upon it by the
application of the legal rules enumerated in Article 38 (1) of the
Statute. Portugal answers that the right which it claims is definite
enough for determination on the basis of international law, and that
all that the Court is called upon to do is to declare the existence

34
37 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

of the right in favour of Portugal, leaving its actual exercise to be
regulated and adjusted between the Parties as the exigencies of
the day-to-day situation might require.

India argues that the vague and contradictory character of the
right claimed by Portugal is proved by Portugal’s admission that
on the one hand the exercise of the right is subject to India’s regu-
lation and control as the territorial sovereign, and that on the other
hand the right is not accompanied by any immunity, even in the
case of the passage of armed forces.

There is no doubt that the day-to-day exercise of the right of
passage as formulated by Portugal, with correlative obligation
upon India, may give rise to delicate questions of application, but
that is not, in the view of the Court, sufficient ground for holding
that the right is not susceptible of judicial determination with
reference to Article 38 (1) of the Statute. The Court is satisfied that
the right of passage claimed by Portugal has, in the circumstances,
been defined with sufficient precision to enable the Court to pass
upon it.

%
* *

In support of its claim, Portugal relies on the Treaty of Poona of
1779 and on sanads (decrees), issued by the Maratha ruler in 1783
and 1785, as having conferred sovereignty on Portugal over the
enclaves with the right of passage to them.

India objects on various grounds that what is alleged to be the
Treaty of 1779 was not validly entered into and never became in
law a treaty binding upon the Marathas. The Court’s attention has,
in this connection, been drawn inter alia to the divergence between
the different texts of the Treaty placed before the Court and to
the absence of any text accepted as authentic by both parties and
attested by them or by their duly authorized representatives. The
Court does not consider it necessary to deal with these and other
objections raised by India to the form of the Treaty and the proce-
dure by means of which agreement upon its terms was reached. It
is sufficient to state that the validity of a treaty concluded as long
ago as the last quarter of the eighteenth century, in the conditions
then prevailing in the Indian Peninsula, should not be judged upon
the basis of practices and procedures. which have since developed
only gradually. The Marathas themselves regarded the Treaty of
1779 as valid and binding upon them, and gave effect to its pro-
visions. The Treaty is frequently.referred to as such in subsequent
formal Maratha documents, including the two sanads of 1783 and
1785, which purport to have been issued in pursuance of the Treaty.
The Marathas did not at any time cast any doubt upon the validity
or binding character of the Treaty.

35
38 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. I2 IV 60)

India contends further that the Treaty and the two sanads of 1783
and 1785 taken together did not operate to transfer sovereignty
over the assigned villages to Portugal, but only conferred upon it,
with respect to the villages, a revenue grant of the value of 12,000
rupees per annum called a jagir or saranjam.

Article 17 of the Treaty is relied upon by Portugal as constituting
a transfer of sovereignty. From an examination of the various texts
of that article placed before it, the Court is unable to conclude that
the language employed therein was intended to transfer sovereignty
over the villages to the Portuguese. There are several instances on
the record of treaties concluded by the Marathas which show that,
where a transfer of sovereignty was intended, appropriate and
adequate expressions like cession “in perpetuity” or “in perpetual
sovereignty’ were used. The expressions used in the two sanads
and connected relevant documents establish, on the other hand,
that what was granted to the Portuguese was only a revenue tenure
called a jagir or savanjam of the value of 12,000 rupees a year. This
was a very common form of grant in India and not a single in-
stance has been brought to the notice of the Court in which such a
grant has been construed as amounting to a cession of territory in
sovereignty.

It is argued that the Portuguese were granted authority to put
down revolt or rebellion in the assigned villages and that this is an
indication that they were granted sovereignty over the villages.
The Court does not consider that this conclusion is well-founded. If
the intention of the Marathas had been to grant sovereignty over
the villages to the Portuguese, it would have been unnecessary for
the grant to recite that the future sovereign would have authority
to quell a revolt or rebellion in his own territory. In the context in
which this authorization occurs, it would appear that the intention
was that the Portuguese would have authority on behalf of the
Maratha ruler and would owe a duty to him to put down any revolt
or rebellion in the villages against his authority.

It therefore appears that the Treaty of 1779 and the sanads of
1783 and 1785 were intended by the Marathas to effect in favour of
the Portuguese only a grant of a jagir or saranjam, and not to
transfer sovereignty over the villages to them.

Having regard to the view that the Court has taken of the charac-
ter of the Maratha grant in favour of the Portuguese, the situation
during the Maratha period need not detain the Court further in its
consideration of Portugal’s claim of a right of passage to and from
the enclaves. During the Maratha period sovereignty over the
villages comprised in the grant, as well as over the intervening
territory between coastal Daman and the villages, vested in the
Marathas. There could, therefore, be no question of any en:lave or
of any right of passage for the purpose of exercising sovereignty
over enclaves. The fact that the Portuguese had access to the villages

36
39 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. I2 IV 60)

for the purpose of collecting revenue and in pursuit of that purpose
exercised such authority as had been delegated to them by the
Marathas cannot, in the view of the Court, be equated to a right
of passage for the exercise of sovereignty.

*
* *

It is clear from a study of the material placed before the Court
that the situation underwent a change with the. advent of the
British as sovereign of that part of the country in place of the
Marathas. The British found the Portuguese in occupation of the
villages and exercising full and exclusive administrative authority
over them. They accepted the situation as they found it and left the
Portuguese in occupation of, and in exercise of exclusive authority
over, the villages. The Portuguese held themselves out as sovereign
over the villages. The British did not, as successors of the Marathas,
themselves claim sovereignty, nor did they accord express recog-
nition of Portuguese sovereignty, over them. The exclusive authority
of the Portuguese over the villages was never brought in question.
Thus Portuguese sovereignty over the villages was recognized by
the British in fact and by implication and was subsequently tacitly
recognized by India. As a consequence the villages comprised in the
Maratha grant acquired the character of Portuguese enclaves within
Indian territory.

. For the purpose of determining whether Portugal has established
the right of passage claimed by it, the Court must have regard to
what happened during the British and post-British periods. During
these periods, there had developed between the Portuguese and the
territorial sovereign with regard to passage to the enclaves a practice
upon which Portugal relies for the purpose of establishing the right
of passage claimed by it.

With regard to Portugal’s claim of a right of passage as formulated
by it on the basis of local custom, it is objected on behalf of India
that no local custom could be established between only two States.
It is difficult to see why the number of States between which a
local custom may be established on the basis of long practice must
necessarily be larger than two. The Court sees no reason why long
continued practice between two States accepted by them as
regulating their relations should not form the basis of mutual rights
and obligations between the two States.

As already stated, Portugal claims a right of passage to the extent
necessary for the exercise of its sovereignty over the enclaves, with-
out. any immunity and subject to the regulation and control of
India. In the course of the written and oral proceedings, the exis-
tence of the right was discussed with reference to the different
categories making up the right, namely private persons, civil
officials, goods in general, armed forces, armed police, and arms and

37
40 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

ammunition. The Court will proceed to examine whether such a
right as is claimed by Portugal is established on the basis of the.
practice that prevailed between the Parties during the British and
post-British periods in respect of each of these categories.

It is common ground between the Parties that the passage of
private persons and civil officials was not subject to any restrictions,
beyond routine control, during these periods. There is nothing on
the record to indicate the contrary.

Goods in general, that is to say, all merchandise other than arms
and ammunition, also passed freely between Daman and the en-
claves during the periods in question, subject only, at certain times,
to customs regulations and such regulation and control as were
necessitated by considerations of security or revenue. The general
prohibition of the transit of goods during the Second World War
and prohibitions imposed upon the transit of salt and, on certain
occasions, upon that of liquor and materials for the distillation of
liquor, were specific measures necessitated by the considerations
just referred to. The scope and purpose of each prohibition were
clearly defined. In all other cases the passage of goods was free. No
authorization or licence was required.

The Court, therefore, concludes that, with regard to private
persons, civil officials and goods in general there existed during the
British and post-British periods a constant and uniform practice
allowing free passage between Daman and the enclaves. This practice
having continued over a period extending beyond a century and a
quarter unaffected by the change of regime in respect of the inter-
vening territory which occurred when India became independent,
the Court is, in view of all the circumstances of the case, satisfied
that that practice was accepted as law by the Parties and has given
rise to a right and a correlative obligation.

The Court therefore holds that Portugal had in 1954 a right of
passage over intervening Indian territory between coastal Daman
and the enclaves and between the enclaves, in respect of private
persons, civil officials and goods in general, to the extent necessary,
as claimed by Portugal, for the exercise of its sovereignty over the
enclaves, and subject to the regulation and control of India.

As regards armed forces, armed police and arms and ammunition,
the position is different.

_It appears that during the British period up to 1878 passage of
armed forces and armed police between British and Portuguese
possessions was regulated on a basis of reciprocity. No distinction
appears to have been made in this respect with regard to passage
between Daman and the enclaves. There is nothing to show that
passage of armed forces and armed police between Daman and the

38
AI RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

enclaves or between the enclaves was permitted or exercised as of
right.

Paragraph 3 of Article XVIII of the Treaty of Commerce and
Extradition of 26 December 1878 between Great Britain and
Portugal laid down that the armed forces of the two Governments
should not enter the Indian dominions of the other, except for the
purposes specified in former Treaties, or for the rendering of mutual
assistance as provided for in the Treaty itself, or in consequence of
a formal request made by the Party desiring such entry. Subsequent
correspondence between the British and Portuguese authorities in
India shows that this provision was applicable to passage between
Daman and the enclaves.

It is argued on behalf of Portugal that on twenty-three occasions
during the years 1880-1889 Portuguese armed forces crossed British
territory between Daman and the enclaves without obtaining per-
mission. In this connection, it should be observed that on 8 Decem-
ber 18go the Government of Bombay forwarded to the Government
of Portuguese India a complaint to the effect that ‘‘armed men in
the service of the Portuguese Government are in the habit of
passing without formal request through a portion of the British
Pardi taluka of Surat en route from Daman to Nagar Haveli and
back again. It would appear that the provisions of Article XVIII
of the Treaty are thus violated.” In his letter of 22 December 1890
addressed to the Governor of Bombay, the Governor-General of
Portuguese India stated: “On so delicate a subject I request leave
to observe that Portuguese troops never cross British territory
without previous permission’’, and went on to add: “For centuries
has this practice been followed, whereby the treaties have been
respected and due deference shown to the British Authorities.’’ The
statement that this practice concerning the passage of armed forces
from the territory of one State to that of the other had continued
over a long period even before the enclaves came into existence
finds support, for instance, in a Treaty of 1741 between the Marathas
and the Portuguese which contained the following provision: “A
soldier of the Sarkar [Maratha ruler] entering the territory of Daman
will do so only with the permission of the Firangee [Portuguese].
If a soldier of the Firangee were to enter the territory of the Sarkar,
he will do so only with the permission of the Sarkar. There is no
reason to enter without permission.”

In consequence of the British complaint that passage of armed
men between Daman and the enclaves took place in contravention
of Article XVIII of the Treaty of 1878 and of the reply of the
Governor-General of Portuguese India of 22 December 1890, a
certain amount of further correspondence took place and the matter
was concluded with the assurance contained in the letter of the
Secretary-General of the Government of Portuguese India dated
1 May 1801, in which he stated: “His Excellency thanks you for
the communication with regard to the circumstances in which the

39
42 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

matter is placed, and requests me to state that on the part of this
Government injunctions will be given for the strictest observance
of the provisions of Article XVIII of the Anglo-Portuguese Treaty.”

The Court is not concerned with the question whether any vio-
lation of the relevant provision of the Treaty in fact took place.
Whether any such violation did or did not take place, the legal
position with regard to the passage of armed forces between Daman
and the enclaves appears clearly from this correspondence.

The requirement of a formal request before passage of armed
forces could take place was repeated in an agreement of 1913.

With regard to armed police, the position was similar to that of
armed forces. The Treaty of 1878 regulated the passage of armed
police on the basis of reciprocity. Paragraph 2 of Article XVIII of
the Treaty made provision for the entry of the police authorities
of the parties into the territories of the other party for certain
specific purposes, e.g., the pursuit of criminals and persons engaged
in smuggling and contraband practices, on a reciprocal basis. An
agreement of 1913 established an arrangement providing for a
reciprocal concession permitting parties of armed police to cross
intervening territory, provided previous intimation was given. An
agreement of 1920 provided that armed police below a certain rank
should not enter the territory of the other party without consent
previously obtained.

An agreement of 1940 concerning passage of Portuguese armed
police over the Daman-Silvassa (Nagar-Aveli) road provided that,
if the party did not exceed ten in number, intimation of its passage
should be given to the British authorities within twenty-four hours
after passage had taken place, but that ‘If any number exceeding
ten at a time are required so to travel at any time the existing
practice should be followed and concurrence of the British authori-
ties should be obtained by prior notice as heretofore.”

Both with regard to armed forces and armed police, no change
took place during the post-British period after India became
independent. |

It would thus appear that, during the British and post-British
periods, Portuguese armed forces and armed police did not pass
between Daman and the enclaves as of right and that, after 1878,
such passage could only take place with previous authorization by
the British and later by India, accorded either under a reciprocal
arrangement already agreed to, or in individual cases. Having regard
to the special circumstances of the case, this necessity for autho-
tization before passage could take place constitutes, in the view
of the Court, a negation of passage as of right. The practice
predicates that the territorial sovereign had the discretionary
power to withdraw or to refuse permission. It is argued that per-
mission was always granted, but this does not, in the opinion of
the Court, affect the legal position. There is nothing in the record

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43 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

to show that grant of permission was incumbent on the British
or on India as an obligation.

As regards arms and ammunition, paragraph 4 of Article XVIII
of the Treaty of 1878 provided that the exportation of arms, ammu-
nition or military stores from the territories of one party to those
of the other ‘‘shall not be permitted, except with the consent of,
and under rules approved of by, the latter’.

Rule 7 A, added in 1880 to the rules framed under the Indian
Arms Act of 1878, provided that “nothing in rules 5, 6, or 7 shall be
deemed to authorize the grant of licences ... to import any arms,
ammunition or military stores from Portuguese India, [or] to export
to Portuguese India... [such objects]... except... by a special
licence’. Subsequent practice shows that this provision applied to
transit between Daman and the enclaves.

There was thus established a clear distinction between the practice
permitting free passage of private persons, civil officials and goods
in general, and the practice requiring previous authorization, as
in the case of armed forces, armed police, and arms and ammu-
nition.

The Court is, therefore, of the view that no right of passage in
favour of Portugal involving a correlative obligation on India has
been established in respect of armed forces, armed police, and arms
and ammunition. The course of dealings established between the
Portuguese and the British authorities with respect to the passage
of these categories excludes the existence of any such right. The
practice that was established shows that, with regard to these cate-
gories, it was well understood that passage could take place only by
permission of the British authorities. This situation continued
during the post-British period.

*
ae *

Portugal also invokes general international custom, as well as
the general principles of law recognized by civilized nations, in
support of its claim of a right of passage as formulated by it. Having
arrived at the conclusion that the course of dealings between the
British and Indian authorities on the one hand and the Portuguese
on the other established a practice, well understood between the
Parties, by virtue of which Portugal had acquired a right of passage
in respect of private persons, civil officials and goods in general, the
Court does not consider it necessary to examine whether general
international custom or the general principles of law recognized by
civilized nations may lead to the same result.

As regards armed forces, armed police and arms and ammunition,
the finding of the Court that the practice established between the

4x
44 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. I2 IV 60)

Parties required for passage in respect of these categories the
permission of the British or Indian authorities, renders it un-
necessary for the Court to determine whether or not, in the
absence of the practice that actually prevailed, general international
custom or the general principles of law recognized by civilized
nations could have been relied upon by Portugal in support of its
claim to a right of passage in respect of these categories.

The Court is here dealing with a concrete case having special
features. Historically the case goes back to a period when, and
relates to a region in which, the relations between neighbouring
States were not regulated by precisely formulated rules but were
governed largely by practice. Where therefore the Court finds a
practice clearly established between two States which was accepted
by the Parties as governing the relations between them, the Court
must attribute decisive effect to that practice for the purpose of
determining their specific rights and obligations. Such a particular
practice must prevail over any general rules.

+
* *

Having found that Portugal had in 1954 a right of passage over
intervening Indian territory between Daman and the enclaves in
respect of private persons, civil officials and goods in general, the
Court will proceed to consider whether India has acted contrary to
its obligation resulting from Portugal’s right of passage in respect
of any of these categories.

Portugal complains of the progressive restriction of its right of
passage between October 1953 and July 1954. It does not, however,
contend that India had, during that period, acted contrary to its
obligation resulting from Portugal’s right of passage. But Portugal
complains that passage was thereafter denied to Portuguese natio-
nals of European origin, whether civil officials or private persons, to
native Indian Portuguese in the employ of the Portuguese Govern-
ment, and to a delegation that the Governor of Daman proposed
to send to Nagar-Aveli and Dadra.

It may be observed that the Governor of Daman was granted the
necessary visas for a journey to and back from Dadra as late as
21 July 1954.

The events that took place in Dadra on 21-22 July 1954 resulted
in the overthrow of Portuguese authority in that enclave. This
created tension in the surrounding Indian territory. Thereafter all
passage was suspended by India. India contends that this became
necessary in view of the abnormal situation which had arisen in
Dadra and the tension created in surrounding Indian territory.

On 26 July the Portuguese Government requested that delegates
of the Governor of Daman (if necessary limited to three) should be

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45 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. I2 IV 60)

enabled to go to Nagar-Aveli in order to enter into contact with the
population, examine the situation and take the necessary admini-
strative measures on the spot. The request stated that if possible
this delegation would also visit Dadra and examine the situation
there. It mentioned that the delegation could be routed directly to
Nagar-Aveli from Daman and need not necessarily pass through
Dadra. The Government of India in its reply dated 28 July refused
this request. The reply stressed inter alia the tension that prevailed
in the intervening Indian territory, and went on to state:

“This tension is bound to increase if Portuguese officials are
permitted to go across Indian territory for the purposes mentioned
in the note. The passage of these officials across Indian territory
might also lead to other undesirable consequences in view of the
strong feelings which have been aroused by the repressive actions
of the Portuguese authorities. In these circumstances, therefore, the
Government of India regret that they cannot entertain the demand
of the Portuguese authorities for facilities to enable them to send a
delegation from Daman to Dadra and Nagar-Aveli across Indian
territory.”

In view of the tension then prevailing in intervening Indian
territory, the Court is unable to hold that India’s refusal of passage
to the proposed delegation and its refusal of visas to Portuguese
nationals of European origin and to native Indian Portuguese in the
employ of the Portuguese Government was action contrary to its
obligation resulting from Portugal’s right of passage. Portugal’s
claim of a right of passage is subject to full recognition and exercise
of Indian sovereignty over the intervening territory and without
any immunity in favour of Portugal. The Court is of the view that
India’s refusal of passage in those cases was, in the circumstances,
covered by its power of regulation and control of the right of passage
of Portugal.

For these reasons,

THE COURT,

by thirteen votes to two, ;
rejects the Fifth Preliminary Objection;
by eleven votes to four,
rejects the Sixth Preliminary Objection;
by eleven votes to four, |

finds that Portugal had in 1954 a right of passage over intervening
Indian territory between the enclaves of Dadra and Nagar-Aveli
and the coastal district of Daman and between these enclaves, to
the extent necessary for the exercise of Portuguese sovereignty over

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46 RIGHT OF PASSAGE OVER INDIAN TERRITORY (JUDGM. 12 IV 60)

the enclaves and subject to the regulation and control of India, in
respect of private persons, civil officials and goods in general;

by eight votes to seven,

finds that Portugal did not have in 1954 such a right of passage in
respect of armed forces, armed police, and arms and ammunition;

by nine votes to six,

finds that India has not acted contrary toits obligations resulting
from Portugal’s right of passage in respect of private persons, civil
officials and goods in general.

Done in English and French, the English text being authoritative,
at the Peace Palace, The Hague, this twelfth day of April, one
thousand nine hundred and sixty, in three copies, one of which will
be placed in the archives of the Court and the others transmitted
to the Government of the Portuguese Republic and to the Govern-
ment of the Republic of India, respectively.

(Signed) Helge KLAESTAD,
President.

(Signed) GARNIER-COIGNET,
Deputy-Registrar.

The PRESIDENT and Judges BASDEVANT, BADAWI, KOJEVNIKOV
and SPIROPOULOS append Declarations to the Judgment of the
Court.

Judge WELLINGTON Koo appends to the Judgment of the Court
a statement of his Separate Opinion.

Judges WINIARSKI and BADAWI append to the Judgment of the
Court a statement of their Joint Dissenting Opinion. Judges
ARMAND-UGON, MORENO QUINTANA and Sir Percy SPENDER
and Judges ad hoc CHAGLA and FERNANDES append to the
Judgment of the Court statements of their Dissenting Opinions.

(Initialled) H. K.
(Initialled) G.-C.

44