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DISSENTING OPINION OF JUDGE KLAESTAD

In its Fifth Preliminary Objection the Government of India
invokes a reservation contained in its Declaration of 1940 accepting
the compulsory jurisdiction of the Court, which excludes from this
jurisdiction “disputes with regard to questions which by inter-
national law fall exclusively within the jurisdiction of India”.
It contends that the Court lacks jurisdiction because the present
dispute concerning Portugal’s alleged right of passage over Indian
territory between Daman and the enclaves and between the en-
claves themselves relates to questions which fall exclusively within
the national jurisdiction of India.

The legal principle applicable to a question of this kind was
formulated by the Permanent Court of International Justice in
its Advisory Opinion concerning Naitonality Decrees issued in
Tunis and Morocco. Applying that principle to the circumstances
of the preliminary phase of the present dispute, I shall have to
examine in a summary and provisional manner whether the legal
grounds invoked by the Government of Portugal may justify the
provisional conclusion that they are of juridical importance for the
dispute and, if so, whether these grounds relate to questions of
international law.

The Government of Portugal invokes a Treaty of 1779 concluded
between Portugal and the Mahratha ruler and various Mahratha
Decrees purporting to carry out the provisions of Article 17 of that
Treaty. It contends that sovereignty over the enclaves was thereby
ceded to Portugal by the Mahratha ruler, while the Government
of India alleges that Portugal acquired only certain revocable
fiscal rights with regard to the enclaves, and that the sovereignty
over them was retained by the Mahratha State. It is possible that
this divergence of opinion may have a bearing on the question of
right of passage between Daman and the enclaves. As it involves
the interpretation of a treaty, it relates to a question of inter-
national law.

The Government of Portugal further invokes a Convention of
1785 concluded with the Mahratha ruler. By this Convention it was
provided that Portugal was obliged to quell any rebellion which
might break out in the enclaves. It is argued that this provision
presupposed Portugal’s access to the enclaves, thereby affirming
her right of passage over Mahratha territory. Whether this view is
justified or not may depend on an interpretation of this Conven-
tion and would consequently relate to a question of international
law.

The Government of Portugal also relies on an alleged local
custom which during a period of nearly two centuries is said to

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165 RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE KLAESTAD)

have developed between Portugal and the Mahratha State and its
successors. The question whether a possible usage with regard to
passage between Daman and the enclaves was exercised in such a
manner as to satisfy the requirements of Article 38, paragraph 1 fb),
of the Statute of the Court is a question of international law
(compare Judgment in the Asylum case, I.C.J. Reports 1950,
pp. 276-277).

The Government of Portugal finally invokes an alleged inter-
national general custom as well as general principles of law recog-
nized by civilized nations (Statute, Article 38, paragraphs I (6}
and (c)), while the Government of India, refuting the Portuguese
allegations in this respect, places itself upon the same ground of
international law.

It is unnecessary to pursue this summary and provisional exami-
nation of the legal grounds invoked by the Government of Portugal
in order to form an opinion upon the nature of the dispute. This
examination is sufficient to show that in any case some of these
grounds may be of juridical importance for the present dispute
and that they relate to questions of international law. It is in my
view evident that the subject-matter of the dispute can only be
decided on the ground of international law, and that it cannot be
considered as relating to “questions which by international law
fall exclusively within the jurisdiction of India”. I am therefore
unable to accept the Fifth Preliminary Objection.

With regard to the question whether this Objection should be
rejected or joined to the merits, opinions have differed. In my
view it should be rejected, since a summary and provisional exami-
nation of the legal grounds invoked by Portugal has in a sufficient
measure disclosed elements of international law which may be of
relevance for the decision of the dispute.

This provisional finding as to the nature of the dispute does not
in any way prejudge the consideration of the merits. With regard
to the question whether the Portuguese contentions as to the
alleged right of passage over Indian territory are justified or not,
I have formed no opinion whatsoever. Such an opinion could be
arrived at only when the dispute at the next phase of the pro-
ceedings has been argued and considered on the merits. The pre-
liminary question whether the Court has jurisdiction to decide
these merits should be distinguished from the actual exercise of
that jurisdiction.

With regard to the other questions in dispute, I am in generak
agreement with the Court.

(Signed) Helge KLAESTAD.

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