97

DISSENTING OPINION OF JUDGE SIR PERCY SPENDER

I greatly regret that I cannot agree with the Judgment of the
Court on certain important issues, though I do agree with certain
of its conclusions.

As to the Fifth and Sixth Preliminary Objections of the Republic
of India to the jurisdiction of the Court, I agree that these cannot
be sustained.

On the merits I agree: that Portugal in 1954 had acquired by
local custom a right of passage to the extent necessary for the
exercise of Portuguese sovereignty over the enclaves, subject
however to the regulation and control of India, which right extended
at least to the passage of private persons, Portuguese civil officials
and goods in general.

I am unable, however, to agree that no right of passage had
been acquired by it in respect of armed forces or armed police or
arms and ammunition, or that India did not act contrary to its
obligation resulting from the right of passage which the Court has
found to have been acquired by Portugal. I shall state my reasons.

*
* *

I do not think it necessary to determine whether, under the
Treaty of Punem and the Sanads of 1783 and 1785, sovereignty over
the enclaves became vested in Portugal. Whatever was the precise
nature of the grant made thereunder, even if it were one in jagir or
saranjam, merely fiscal in character and unilaterally revocable at
any time in the absolute discretion of the Marathas, the grant
whilst it endured necessarily implied some right of passage in
Portugal between Daman and the villages of Dadra and Nagar-
Aveli, and the record establishes that during the Maratha period
it did imply a right of passage which, for all practical purposes,
was under the circumstances then existent, in substance the same
as would have resulted had the grant been one of sovereignty over
these villages.

The grant was made for the purpose of supporting the Portuguese
fortress of Daman. The authority of the Portuguese within the
villages included the collection of taxes, the maintenance of order,
the punishment of offenders and the power to quell rebellion (see
Capitulations of 1785, paras. 3, 4, 7 and 11, Annex 8 to Portuguese
Memorial; see also Indian Annex F. No. 40 at p. 181). In point of
fact, the Portuguese during the Maratha period exercised passage
between Daman and the villages not only for administrative per-

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sonnel, but also for armed troops and armed police, to an extent
sufficient to enable them to exercise their authority over them.

This authority remained somewhat precarious until about 1814.
From then onwards, however, it appears to have been reasonably
entrenched.

The record further establishes that the passage between Daman
and the villages which in fact took place, was effected in exercise
of a right acknowledged by the Marathas. Taxes were levied in
kind. Timber, rice and other products were transported to Daman;
herds of cattle were driven in the same direction. Stall-holders in
the villages brought supplies from Daman. It was necessary for
Portuguese officials frequently to pass from Daman to the villages
and vice versa; in fact they did so pass and passed freely. When
occasion demanded, military officers, men and equipment were
sent to them from Daman for the purpose of preserving order.

The Maratha period was in 1818 followed by that of the British.

It has been contended that the British, from the commencement
of their rule, refused to be bound by any rights granted to the
Portuguese by the Marathas under the Punem Treaty and the
Sanads of 1783 and 1785. In my view, the record fails to support
this contention. It is true that the British did refuse to acknowledge
or be bound by certain exemptions from customs and other taxes
on ‘‘all articles and timber’? which might be exported from Nagar-
Aveli to Daman, which exemptions the Portuguese claimed had
been granted to them as the result of the Treaty, but the record
does not support the view that the British refused to accept the
Treaty and the Sanads.

At the very commencement of the British rule the Portuguese
claimed that sovereignty over the villages had been ceded to them
by the Marathas. It is improbable that the British would not have
made any enquiries of their own in relation not only as to the
Treaty and the Sanads, but also as to the practice as to passage
between Daman and the villages which had existed under the
Marathas. The Maratha records relating to the area in which the
villages lie, for ten years up to 1818, running into some hundreds of
bundles, were despatched from Poona to the British in Bombay on
6 December 1818. There is specific evidence that the British did
make some enquiries both in 1819 and 1859. It is in any event
beyond dispute that, from the commencement of and throughout
British rule, whatever the premises on which ‘their conduct was
based, the British treated the Portuguese as sovereign over the
villages (hereafter called ‘‘the enclaves’’). It is a proper inference
from the record that the British were aware of the practice as to
passage which was in existence in 1818 and were aware that the
Portuguese were exercising that passage under a claim of right.

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*
* *

In order to determine whether Portugal acquired by custom any
right of passage and, if so, the nature and extent of the same, it is
necessary to examine the practice which was from time to time
followed.

The proper way of measuring the nature and extent of any such
custom, if established, is to have regard to the practice which itself
both defines and limits it. The first element in a custom is a constant
and uniform practice which must be determined before a custom
can be defined.

The record in my opinion. establishes:

1. For the first two or three decades after 1818 there was no
essential change in the practice in relation to passage which had
been followed during the Maratha period.

z. The British—-as subsequently did the Republic of India—
recognized Portuguese sovereignty over the enclaves.

This is established beyond all reasonable controversy. The conduct
of the British and India is wholly inconsistent with any other
conclusion. The record is heavy with instances of this recognition.
[During the British period: Counter-Memorial, Vol. II, Indian
Annexes at pages 158, 164, 166, 167, 169-173, 174, 225, 251, 266,
565, 584; Rejoinder, Vol. II, Indian Annexes at pages 226, 233,
235, 249. During the Indian period: Counter-Memorial, Vol. II,
Indian Annexes at pages 308, 401, 402, 407; Rejoinder, Vol. IT,
Indian Annexes at pages 250-252, 253, 267-268.] The notes from
India to Portugal of 1950 and 1953, seeking the transfer by Portugal
to India of all the former’s possessions in India, in themselves
provide powerful evidence of India’s recognition.

During the oral hearing, on 12 October, Counsel for India admitted.
the existence of Portuguese sovereignty. At a later date, on 29 Oc-
tober, when Counsel for Portugal put the following question
“Does India admit that Portuguese sovereignty still subsists”, it
was not disputed by India that Portugal still had sovereignty over
the enclaves.

As between the Parties to and for the purposes of this dispute,
Portugal’s sovereignty is not open to question.

This recognition of sovereignty in Portugal, both by the British
and India, is in my view the central fact in this dispute.

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100 RIGHT OF PASSAGE (DISS, OPIN. OF SIR PERCY SPENDER)

3. Despite the closest regulation and control from time to time
of many aspects of passage, the constant and uniform practice of
the British was to allow passage in respect of all six categories
mentioned in the Judgment of the Court to an extent which was
at least sufficient to enable Portugal continuously to administer the
enclaves.

The Court holds, and I agree, that the practice followed during
the British period and continued during that of India, resulted in
Portugal acquiring by local custom a right of passage in respect of
private persons, civil officials and goods. It is my opinion, however,
that the practice resulted in a custom by virtue of which Portugal
acquired a right of passage not only in respect of these categories,
but also in respect of armed forces, armed police, and arms and
ammunition.

These three categories require separate examination.

*
* *

Movement of members of the armed forces passing between
Daman and the enclaves was, at least after the middle of the
nineteenth century, not very great. They appear to have dis-
charged in the main strictly police functions. The numbers who
exercised passage at any given time were small. Their func-
tions related primarily to the maintenance of internal order
within the enclaves ; passage between Daman and the enclaves, and
between the latter, was largely, if not principally, in relation to
relief of detachments, posting or re-posting, proceeding on leave,
escorting government funds or prisoners and other duties of a
police character. The movement of armed police presents a some-
what similar picture.

The constant and uniform practice during the British period was
to permit under regulation and control the passage of members of
the armed forces and police officials and arms and ammunition.
There appears never to have been an occasion when this passage
was not permitted.

In 1947 India succeeded the British as sovereign over the inter-
vening territory. From that time onwards, until shortly before July
1954, when the events arose from which this dispute stems, the
practice which had been followed during the British period was
continued.

*
* *

The right of passage claimed by Portugal is an indivisible one
which was, however, in its exercise subject to regulation and control

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by India. Portugal did not claim one right of passage for goods,
another for private individuals and a separate one for each of the
six categories into which, for the purposes of the Court’s Judgment,
the passage has been divided.

This, however, presents no difficulty so long as the indivisible
character of the claim made by Portugal is kept constantly in
mind. Unless, however, this is done, distinctions in degree between
the regulation and control of passage exercised by the British and
later by India, on different occasions and from time to time in
respect of one or some of these different categories, may lead to
impermissible conclusions as to the nature and extent of the right
itself.

In reaching its conclusion that Portugal did not have in July 1954
any right of passage in respect of armed forces, armed police or
arms and ammunition, the Court has pursued certain distinctions
which it sees between one set of categories and another; which in
my opinion are but distinctions of degrees of regulation and control;
and has treated these distinctions as decisive. This has led it to
reach one conclusion in respect of what may conveniently be de-
scribed as the first three categories and an opposite one in respect
of the other three.

There cannot be any real dispute that it was the constant and
uniform practice during the British and post-British periods to
permit passage in respect of all six categories.

Each of these categories was at different times subject to different
regulation and control. The passage of private persons and civil
officials was, until just prior to the events which occurred at Dadra,
subject to routine control, although the frontier controls included
during one period, 1857-1863, the prohibition of entry without a
licence of all foreigners; during the first World War the reporting
by Portuguese Europeans to the police on arrival in Indian territory;
and from 1935 the requirement of all Portuguese not domiciled in
India to carry a passport when entering Indian territory from a
Portuguese possession over the land frontier (Counter-Memorial,
para. 46). The passage of goods in general was subject at certain
times to customs regulation and such regulation and control as
was necessitated by considerations of security or revenue. Indeed,
India’s case was that the passage of goods was “subject at all times
to control and on occasion even to prohibitions” (para. 358 of
Rejoinder).

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In respect of the first three categories, these controls did not
preclude the Court from finding that a custom had arisen creating
a right of passage as at July 1954, which right was itself subject
to the regulation and control by India. This finding, as I read the
Court’s decision, depended on the fact that in respect of private
persons and civil officials there was no restriction beyond routine
control, whilst in respect of goods in general, despite certain pro-
hibitions referred to in the Court’s Judgment, in all other cases
the passage of goods was free, “no authorization or licence was
required”.

It is in the absence or presence of any need to obtain prior
permission or licence for passage.in respect of any category that
the Court finds a decisive distinction between the first three cate-
gories and the other three.

When, therefore, the Court turns to consider whether any right
of passage has been established in respect of armed forces, armed.
police and arms and ammunition, its decision in respect of them is
based upon a preliminary finding that in this respect the position
as regards these three categories is clearly different.

It is then for consideration in what material respects, if any, it
was different, and whether any difference established is decisive.

Firstly, the difference is stated to lie in the fact that from 1818
to 1878, the passage of armed forces and armed police between
British and Portuguese possessions was regulated on a basis of
general reciprocity.

It-is not apparent in what way this difference can be decisive.
Reciprocal arrangements between the British and the Portuguese
were not confined to the passage of armed forces and armed police
between their respective possessions; there were, during certain
periods, some reciprocal arrangements which also covered the
passage of certain goods, between specifically Daman and the
enclaves, free from customs or transit duties (see e.g. Indian Annex
C. No. 35; Counter-Memorial, Vol. II, Indian Annexes at pp. 134,
145, 149, 158, 163, 170, 177; Rejoinder, Vol. II, Indian Annexes
at p. 293).

It needs to be constantly stressed that we are concerned not
with the matter of general entry by British or Portuguese armed
forces or armed police into the possessions of the other, but with
the special case of passage between Daman and the enclaves. To the
extent to which the general covers the specific, the regulation of
entry and transit on the basis of reciprocity is quite consistent
with the right claimed by Portugal, consistent with freedom of
passage between Daman and the enclaves, and in no way incon-
sistent with a long continued practice giving rise through custom
to a right of passage between Daman and the enclaves. Passage

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could be regulated and controlled wholly or in part through agreed-
to arrangements just as it could through unilateral acts by the
British and India. The factual difference stated provides in my
view no foundation for a conclusion that throughout this period
the Portuguese knew that the British were entitled at any time at
their absolute and arbitrary discretion to stop all passage of armed
forces and armed police between Daman and the enclaves.

Moreover, the question with which we are concerned cannot be
dealt with as if the existence of the enclaves had no special signi-
ficance; passage between Daman and the enclaves cannot be equated
to any entry into or over British or Indian territory.

Secondly, the Court finds that after 1878 the position was that
passage could only take place with the previous authorization of
the British, and later of India, whether under a reciprocal arrange-
ment already agreed to or in individual cases, whereas, in the case
of private persons, civil officials and goods in general, no previous
authorization was required.

On the basis of these preliminary findings, the conclusion is
reached that “having regard to the special circumstances of the
case” the necessity for authorization before passage could take
-place constitutes a negation of passage as of right in respect of
armed forces and armed police. This in the Court’s view predicates
that the territorial sovereign had the absolute and arbitrary power
to refuse or withdraw permission at any time.

It is not evident what these special circumstances are.

India submitted that the essence of a right of passage is the power
to pass without permission; that the need for prior permission or
licence negates any right.

It does not appear to what extent, if at all; this proposition, which,
in my opinion is, as stated, unsound, has been accepted. If it be that
in this case the necessity for authorization before passage took
place constitutes a negation of passage as of right solely because of
certain special circumstances, it is important to know what those
special circumstances are. I assume the Court is referring to the
preliminary findings of fact just mentioned, which in my view do
not support its decision. No other special circumstances have been
suggested, and I am not aware of any.

With regard to arms and ammunition, the Court’s decision appears
to turn wholly on the finding that since 1878 the importation or
exportation of the same has been subject to prior permission or
licence. This seems to disregard as unimportant the practice which
had been followed from 1818 to 1878.

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104 RIGHT OF PASSAGE (DISS. OPIN. OF SIR PERCY SPENDER)

*
* cy

In my opinion the record establishes that, prior to the Treaty of
1878, it was not the practice to seek prior permission of the British
before any passage of armed forces or armed police or arms and
ammunition took place, nor was it necessary to do so.

As regards the armed forces, the Treaty of Commerce and Extradi-
tion of 1878, which terminated in 1892, contained a clause (Article
XVIII thereof) which provided that “The armed forces of one of
the two High Contracting Parties shall not enter the Indian domin-
ions of the other, except for the purposes specified in former
Treaties, or for the rendering of mutual assistance as provided for
in the present Treaty, or except in consequence of a formal request
made by the party desiring such entry to the other.” This Article
was of general application directed to entry into the dominions of
the other. It was proposed not by the British but by the Portuguese,
who had for just on 100 years prior thereto continuously exercised
passage in respect of armed forces between Daman and the enclaves.
The reasons for Portugal’s request for the inclusion of this clause
had nothing to do with any question of passage between Daman and
the enclaves, but were concerned with matters of high policy. The
overriding reason was its desire to protect and preserve its sover-
eignty over its overseas possessions in India. It explained ‘the
exact meaning of this Article” (see Indian Annex F. No. 54,
Rejoinder, Vol. II, at page 227).

After the Treaty had come into force, and before 1890, although
there were apparently times when prior permission was in fact
applied for, there were a number of occasions when members of the
Portuguese armed forces passed between Daman and the enclaves
without seeking or having any prior permission to do so. The
Portuguese claim that these occasions numbered twenty-three.
Whatever the precise number, it is quite clear on the record that
there were several (Indian Annex F. No. 53, Rejoinder, Vol. II, at
pages 212, 213, 214, 216, 218, 219 and 220).

This gave rise in 1890 and r891 to correspondence which passed
between the British and the Portuguese authorities in which the
former took up the position that, by virtue of Article XVIII of the
Treaty, formal request for permission should in all cases be made
whenever any Portuguese armed forces passed through British
territory. Whether the provisions of Article XVIII justified the
construction then placed upon it by the British authorities is a
question which need not be answered. The fact is that thereafter it
became a habit for the Portuguese to apply for prior permission.
This marked a point of departure in respect of the administrative
practice which had prevailed before 1878.

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In reaching its conclusion as to the practice with regard to the
passage of armed forces, the Court appears to have been much
persuaded by letter of the 22nd December 1890 from the Gover-
nor General of Portuguese India to the Governor of Bombay (Indian
Annex F. No. 53, Rejoinder, Vol. IE, at page 215) and the Treaty of
1741 between the Marathas and the Portuguese. On examination,
however, these I think provide slender support for its conclusion.

On 8 December 1890 the Bombay Government communicated
with the Portuguese Government in India to the effect that “armed
men in the service of the Portuguese Government are in the habit of
passing without formal request” between Daman and Nagar-Aveli
and that this appeared in breach of Article XVIII of the Treaty of
1878. It was to this legal contention that the Governor General of
Portuguese India replied on 22 December, in which inter alia he
stated: “On so delicate a subject I request leave to observe that
Portuguese troops never cross British territory without previous
permission and that small detachments whenever on the march meet
a military post or any force or British Authority, they halt and
only proceed further after applying for and obtaining fresh permis-
sion. For centuries has this practice been followed, whereby the
treaties have been respected and due deference shown to the British
authorities.” The Bombay Government replied by letter of 9 April
1891 in which it stated that application for permission, claimed to
be necessary under the terms of Article XVIII of the Treaty, had

“not been observed in several instances. It was, however, made quite
clear that permission, when applied for in respect to Portuguese
armed men, ‘‘would be accorded in consonance with past practice”.
(Rejoinder, Vol. II, Indian Annexes at page 223.)

Whatever the precise meaning to be given to the statement in the
letter of the Portuguese Governor General it is, I think, apparent on
the reading of the relevant correspondence that:

(a) The request for permission was treated very much as a for-
mality, though a not unimportant one. The “formal request’’ under
Article XVIII of the Treaty had first to be made.

(6) When permission was applied for, it would be forthcoming
“In consonance with past practice”.

That this letter of the Portuguese Governor General cannot be
accepted as establishing that the practice which had existed prior
to 1878 in relation to passage of armed forces between Daman and
the enclaves was to seek for and obtain permission or that prior
permission was necessary is, I think, reasonably clear elsewhere in
the record.

India contended that since 1879, when the Treaty came into
force, permission was necessary (para. 355 of Rejoinder). But “The

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fact is ... that before 1879 the entry of troops or armed police of
either Government into the territory of the other was governed ‘by
a reciprocal arrangement. The existence of such an arrangement
naturally made it unnecessary for a formal request to be made and
permission to be granted on each occasion of entry (para. 333 of the
Rejoinder). (See also paras. 296 and 333 of Rejoinder, and paras.
132 and 136 of Counter-Memorial; Indian Annex F. No. 53,
Rejoinder, Vol. IJ, at pages 216, 218, 219 and 220; Indian Annex
C. No. 39, Counter-Memorial, Vol. IT, pages 192-193).

As for the Treaty of 1741, referring as it does to circumstances and
a time forty years prior to the Portuguese obtaining possession of the
enclaves, it seems sufficiently remote from the issues with which we
are called upon to deal as to provide little assistance. It seems there-
fore clear that prior to 1878 it was not usual for the Portuguese
to request prior permission nor does it appear that such permission
was necessary before passage took place.

When the Treaty of 1878 was entered into the crystallization into
custom of the practice existing between 1818-1878 was already far
advanced, if indeed it had not by that time become a local custom,
as I incline to think was the case.

Whenever, however, subsequently permission was in fact applied
for, passage was allowed not generally, but always. It was “accorded
in consonance with past practice’.

In the case of armed police different arrangements were agreed
to from time to time or different administrative practices were
followed, which endured for certain periods. During some periods
no prior permission was applied for or appears to have been required.
During other periods it was required, or required when the number
intended to exercise the passage exceeded a given figure. On other
occasions previous intimation of intention was all that seemed to
be called for (see e.g. Indian Annex C. No. 53, Counter-Memorial,
Vol. II, at p. 307 (1912); Indian Annex C. No. 57, 1bid., p. 323 (1940)).
It was necessary to have ‘‘some sort of control or check over the
movements of armed police forces” (2bid., at p. 324). Prior permission
never appears however to have been necessary before 1878 nor was
there any practice to apply for the same.

With respect to arms and ammunition, subsequent to 1878 it was
the usual practice that permission had first to be applied for. But
the evidence does not establish that this was so during the period
1818-1878, or that it was usual during that period for the Portuguese
to ask permission.

*
* *

But assuming that it were otherwise and that there was at all
times an administrative or agreed-to requirement, either general in

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application or specifically applicable to passage between Daman and
the enclaves, that prior permission should be sought before armed.
forces, armed police or arms and ammunition entered or passed
over British,-and later Indian, territory, that;-in my opinion, would
not preclude a custom arising creating in Portugal a right of passage,
subject of course at all times to its regulation and control by the
sovereign of the intervening territory.

Portugal has throughout made it clear that the right claimed by
her to have arisen from local custom is subject in its exercise to
India’s regulation and control. Despite such regulation and control
as from time to time applied to all categories, it was the constant _
and uniform practice, extending over more than a century and a
quarter, for both the British and India, to allow passage for each
of these categories. Never, until about the time of the events of 1954,
did this practice alter.

*
* *

Regulation and control take different forms, which may vary
from time to time. As times and circumstances change, so
may regulation and control. The requirement of a licence to do
an act is a common, useful and practical form of admini-
strative regulation and control. (See in this case, for example,
Counter-Memorial, Vol. IT, Indian Annex D. No. 4, Act of 5 Decem-
ber 1857 relating to foreigners, which provided that no foreigner
should travel or pass through British territory without a licence
which could be revoked at any time; Annex D. No. 5, Act of
12 February 1864 making similar provision to prevent (inter alia)
subjects of foreign States from passing through British India without
the consent of the Government of British India.) A necessity to
apply for a licence before an act is done is not necessarily incom-
patible with a right to do that act. The legal systems of many
countries will provide examples where before an admitted right
may be exercised application for permission must first be made,
but where the right to accord or refuse permission is, in all the
circumstances, interpreted not as one of absolute discretion but as
a controllable discretion, one which must be used reasonably and
not capriciously, one which must be exercised in good faith.

In the present case, in respect of the three categories where the
Court has held a right of passage in Portugal to have arisen, there
were at different times routine controls or such regulations and
controls as were necessitated by considerations of security or revenue.
It is not without significance that whereas the passage of certain
goods was at different times and over substantial periods totally
prohibited, the passage of armed forces, armed police, and arms and

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ammunition were, until just before July 1954, always allowed. The
constant and uniform practice was to allow passage in respect of all
six categories sufficient to enable Portuguese authority to function,
subject however to the different controls in force from time to time.

In respect of any of the first three categories, the Judgment of
the Court confirms that the right of passage which arose out of
local custom may properly, in respect to matters connected with
the exercise thereof, be controlled or regulated by India. Custom,
which created the right, attached to it the qualification of regulation
and control by the sovereign of the intervening territory.

This also, in my opinion, was the case in relation to armed forces,
armed police, and arms and ammunition where a stricter degree of
control and regulation may for obvious reasons be necessary. The
checking of the movement of any of these categories over the inter-
vening territory, the numbers, or quantity involved and the pur-
pose for which the passage is sought, the time, the route to be taken,
and other modalities of passage, are all matters properly the sub-
ject of control and regulation (cf. Indian Annex C. No. 57, Counter-
Memorial, Vol. If, at p. 324).

*
* *

Whether it was in respect of goods or persons or civil officials, or
armed forces or armed police, or arms and ammunition, it was the
constant and uniform practice to allow their passage. In respect of
each category controls of different kinds operated on different
occasions or during different periods. But the controls differed only
in degree. The administrative need to apply for prior authority in
respect of any one or more category is not decisive in this dispute
any more than was the general prohibition of passage of goods during
the Second World War or prohibitions on transit imposed on
different kinds of goods. Each in my opinion fell within the field
of regulation and control of the exercise of the right of passage.
In principle, I do not see any decisive difference between any of the
regulations and controls which applied to the various categories at
different times.

Ok
* *

The Court in its Judgment places little emphasis, if any, upon the
fact of recognition by the British and India of Portuguese sover-

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eignty over the enclaves, yet this recognition is not only an indispu-
table, it is as well the central, fact in the case. Another vital and
indisputable fact is that this sovereignty could not be exercised
unless some passage was accorded the Portuguese. Another is that
this was recognized by both the British and India.

In the course of the oral hearing, Counsel for India conceded
“that Portugal’s sovereignty cannot operate if she is forbidden all
passage of official organs and at the present time of police forces”.
In determining whether custom has created a right of passage, and,
if so, its nature and extent, the facts above referred to have a
special importance. The maintenance of internal order is an essential
aspect of the exercise of sovereignty. Its maintenance in these
enclaves was not possible if all access were denied to the Portuguese
organs of government except unarmed civilian officials.

The history of the enclaves, their geographical situation, the
recognition of Portugal’s sovereignty thereover, the obvious
necessity for some right of passage sufficient to enable Portuguese
sovereignty to be exercised, presents as well the background against
which the conduct of the Parties and the practice they followed
must be measured. Sovereignty is not a mere status, it connotes an
ability to exercise the rights of sovereignty. Recognition that
sovereignty over the enclaves was vested in Portugal was a recog-
nition of Portugal’s rights to exercise sovereignty within them;
otherwise the recognition of sovereignty would have been mean-
ingless.

For Portugal to exercise its rights of sovereignty, passage not
only for private persons, unarmed Portuguese civil officials and
goods in general, but also for armed forces, armed police and arms
and ammunition was in fact indispensable. Necessity for passage
being implicit in the very existence of the enclaves, the recognition
of Portuguese sovereignty, taken in conjunction with the constant
and uniform practice which was followed, establishes in my opinion
that a right of passage in respect of all the six categories referred to
had been acquired by Portugal long before the events of 1954.

The long, uninterrupted, and continuous passage permitted. by
the British and India in respect of armed forces, armed police, and
arms and ammunition is, in all the circumstances, far more con-
sistent with a conclusion that both the British and India recognized
an obligation on their part, subject to their regulation and control,
to allow their passage, than with a conclusion that the matter of
passage was solely one for their absolute and arbitrary discretion
and that they were at liberty, if they so wished, at any time to put
an end forever to further passage, isolate, for all practical purposes,

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the enclaves from Portuguese authority and thus effectively
prevent the Portuguese from exercising their acknowledged sover-
eignty over the enclaves...

In my opinion the record establishes a practice during the.
British and post-British periods, accepted as law by the Parties, to
allow the passage of armed forces, armed police, and arms and
ammunition, as well as that of private persons, civil officials and
goods in general, to the extent necessary in the exercise of Portu-
guese sovereignty over the enclaves, and subject to the regulation
and control of India, for the purposes of, but only for the purposes
of, the normal day-to-day administration thereof, including the
maintenance of law and order.

*
+ *

A right of passage having been established, there was a correlative
obligation on India not to prevent the exercise of that passage; it
could regulate and control it; it could not prevent it or render it
nugatory or illusive.

The Court has held that no breach by India of its international’
obligation has been proved. Again, I regret that J am unable to
agree, even assuming—as for the purpose of this part of my opinion
I do—that the right of passage acquired by Portugal was limited to
the first three categories mentioned in the Court’s Judgment.

In 1954 India did not acknowledge that Portugal had any right
of passage. India had persuaded itself that it was in its absolute
discretion, if it wished, completely to prevent Portugal from having
any access to the enclaves.

*
* *

In order to ascertain whether any breach was committed by
India it is, I think, proper to have regard to the background
furnished by certain events which occurred over a period of up-
wards of four years prior to July 1954. These disclose a widening
estrangement between Portugal and India and a progressive
tightening of restrictions on all movement by the Portuguese into
and across Indian territory including ultimately and specifically
movement between Daman and the enclaves.

*
* *

On 27 February 1950 the Government of India approached the
Portuguese Ministry of Foreign Affairs with the view that Portugal
should agree to the integration of her territories in the Indian
Peninsula within the Republic of India. It sought the acceptance

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of this principle by Portugal, leaving to be discussed the ways and
means to give it effect.

By Memorandum dated 15 June 1950, Portugal made it clear that
the transfer of any Portuguese territory could not be considered.

On receipt of this Memorandum the Indian Minister in Portugal
stated that his Government could not accept the Portuguese refusal
of India’s proposal as a final disposition of the question or acquiesce
in the continuance of the existing position.

On 14 January 1953, the Indian Government addressed a further
Note on the same subject to the Government of Portugal. It asked
that the principle of direct transfer should be accepted first and
that this should be followed by a de facto transfer of the administra-
tion. “No longer ... is it compatible with the status of India ... that
pockets of foreign territory, however small in area ... should
continue to exist on Indian soil...” ““The Government of India has
come to the conclusion that no solution is now possible except on
the basis of a direct transfer which would ensure the merger of
these territories at an early date with the Indian Union.”

On 1 May 1953, Portugal having refrained from replying to this
renewed request and having refused to discuss the question of a
direct transfer with the Indian Chargé d’Affaires, India, by Note of
this date, notified Portugal that unless it was prepared to discuss
the question of direct transfer, it proposed to close its Legation in
Lisbon. The Note stressed again the Government of India’s view
that Portuguese possessions should become an integral part of the
territory of the Union of India.

Portugal, on 15 May 1953, replied to both the preceding Notes.
It adhered to its refusal to discuss India’s request, and asked India
to reconsider its intention to close its Legation.

_ On 26 May 1953 India notified Portugal that its Legation would
be closed from 11 June 1953.

In October 1953 India prohibited the transit of armed Portuguese
police or military personnel across Indian territory.

On 2 December 1953 the Portuguese Legation at New Delhi, by
Note to India’s Foreign Affairs Ministry, stated that information
had been received that Indian authorities had as from 26 November
1953 forbidden the transit of the Governor of Daman District, of
the European officials and the car of the Portuguese police through
Indian territory between Daman and Nagar-Aveli unless provided
with passports and Indian visas. The Portuguese Note stated that it
would “hamper administration of the said territories’’; it was felt
that the measure was unfriendly.

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This complaint was referred to in an Indian Note of 23 December
1953. India stated that it had been compelled to review its policy in
view of the ‘‘general unfriendly attitude” of the Portuguese and the
“‘misuse’’ of concessions hitherto enjoyed by Portuguese officials.
However, to facilitate the administration of Nagar-Aveli the
District Magistrates at Surat were ‘‘as a very special case” authori-
zed to grant transit visas to permanent Portuguese European
officials of Daman and Silvassa but no further concession could be
considered. This practice as applied to transit between Daman and
Nagar-Aveli was, I think, an innovation (see Annexes 35 and 39 to
Portuguese Memorial, and Indian Annexes E. 51 and 52). It was
the subject of further protests on the part of the Portuguese, on
18 January 1954 and 11 February 1954 (Annexes 39 and 40 to
Memorial). The Note of 18 January (para. 4) stated that ‘the
Governors of Daman, as well as the other officials of the district,
including the Europeans, had always been allowed, by custom and
tradition, to cross Indian territory between Daman and Nagar-
Aveli … without any formalities of visas or of presenting themselves
to the Indian authorities”.

On 3 February 1954, with immediate effect, trans-shipment
through India from and to the Portuguese possessions in India
of arms and ammunition of all categories was prohibited. The pro-
hibition extended also to Portuguese civil and military personnel,
excepting only the Governor-General of Goa and diplomatic and
career consular officials accredited to the Government of India
(Annex 45 to Memorial).

* *

We now come to the events which occurred at Dadra and Nagar-
Aveli.

It is, I think, important to consider those which took place at
Nagar-Aveli separately from those at Dadra. India has throughout
this case dealt with the two series of events as in substance one
occurrence. There was of course an interconnection between them
but they were quite separate occurrences.

On the evening of 21 July 1954 a band of men entered Dadra from
Indian territory for the purpose of taking over the administration
there. A mélée ensued. Two Portuguese officers were killed. Portu-
guese resistance was overcome and its control displaced.

On 13 June 1954, the transit of vehicles between Daman and
the enclaves had been interrupted by the Indian authorities.
On 17 July 1954, India ‘decided to make certain changes in the

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concessions hitherto granted to the Portuguese administration
at Daman and Nagar-Aveli” with immediate effect. A number
of new restrictions were imposed, the most important of which
was that “the transport of firearms, and ammunition and military
stores by a Portuguese officer, or intended for the Portuguese
India Government, passing through Indian territory, will be
prohibited”. On the day preceding 21 July the Governor of Daman,
proceeding to Dadra, was prevented from crossing the border.
The Indian explanation is that he had merely been asked to
submit certain clarifications regarding his return visa, that he had
tefused to give them and said he would obtain separate visas for
the outward and return journeys. This he did, and he passed through
to Dadra on 21 July. At the same time, on 20 July 1954, a bus on
the regular service between Daman and Nagar-Aveli was forced to
return when it was nearing Dadra.

It is stated by India that “in April 1954 the position in regard to
travel between Portuguese possessions and India was that Goans
who were not in the service of the Portuguese Government could
enter Indian territory without formalities and freely move within
it; and that Indian nationals also could enter the Portuguese
possessions without requirement of passport and visa, but were
required to report to the police authorities within a certain time of
arrival and were subject to inspection of identity certificates.
Portuguese Europeans and Portuguese native subjects who were in
the service of the Portuguese Government were required to produce
‘Guias’ or passports having a visa for entry in or transit through
India. There was no ban on such entry or transit right up to the date of
the insurrection in Dadra, The day before the insurrection in Dadra,
that is, on 21 July 1954, the Governor of Daman had been allowed
to enter Indian territory and proceed to Dadra and to complete the
return journey on the strength of visas granted by the Indian
Government. After the insurrection in Dadra, the Indian Government
ceased to grant visas to Portuguese Europeans or to native subjects in
the service of the Portuguese Government wishing to go to Dadra and
Nagar-Avelt.” (Indian Counter-Memorial, para. 211.)

On 26 July the Portuguese Government requested that delegates
of the Governor of Daman (if necessary limited to three) should be
permitted 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. 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.
This request was refused (Annex 52 to Memorial).

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114 RIGHT OF PASSAGE (DISS. OPIN. OF SIR PERCY SPENDER)

This was prior to any occurrences in Nagar-Aveli. It was not
until 2g July that the first event which led during August to the
overthrow of Portuguese authority in Nagar-Aveli occurred. Up to
29 July conditions within Nagar-Aveli were normal.

From the time of the events in Dadra and thenceforward the
passage of all Portuguese civil officials or employees to either of the
enclaves was banned. All passage was refused. In my opinion the
banning of all transit by and the stopping of all further visas to
Portuguese civil officials, whether native or European, followed by
the refusal to permit the passage of these few delegates—the refusal
of all passage to the enclaves—was in breach of India’s international
obligation in relation to Portugal’s right of passage, unless it can be
excused as within the qualification to Portugal’s right which per-
mitted India to regulate and control its exercise.

*
* *

India contends that to have granted passage could have resulted
in increased tensions and could have led to undesirable conse-
quences.

It is relevant to observe that India did not purport in any way to
regulate and control any right of Portugal to passage. Her attitude
is that no such right existed.

If India had in fact purported to regulate and control Portugal’s
right of passage, it would have been relevant to enquire whether
the action taken by India was in reality a regulation or control of
the right of passage, or was directed to another and different
purpose. It would have been relevant to enquire whether it was in
fact directed to control and regulation as such, or whether it was
directed to the right of passage as such so as to render it nugatory.
India cannot be in any better position in this case than she would
have been had she purported to have regulated and controlled
Portugal’s right of passage.

In my opinion, the key to the question whether its actions were
or were not a breach of its obligation to conduct itself in consonance
with the international right acquired by Portugal, is to be found in
the conduct of India and the series of progressive restrictions on
passage imposed by it since 1953. The refusal to grant visas to any
civil officials after the incursion into Dadra and the refusal to permit
the passage to Nagar-Aveli of but a few delegates of the Governor
of Daman cannot be seen in isolation. They were part of the pattern
already formed by the past.

An examination of the evidence forces me to the conclusion that
the dominant purpose of India immediately after the events at
Dadra, to which all other considerations were subordinated, was to

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exclude the Portuguese thenceforth from any further access to the
enclaves. For reasons unconnected with any question of regulation
or control of passage as such or of any right of passage, it was not
prepared to permit civil officials or any organ of Government to ~
pass to the enclaves under any circumstances and acted accordingly.
By India’s actions Nagar-Aveli became isolated from the Portuguese
authorities at Daman before the events which occurred there had
taken place, and has, in the events which have happened, continued
to be so ever since.

The qualification of Portugal’s right making it in its exercise
subject to India’s control and regulation affords in the circumstances
no protection to India. Breach of its international obligation has
been established. In my opinion the Court should have so found
and should then have proceeded to consider the resulting situation,
and the contentions advanced by India to the effect that any
obligations with regard to passage binding on it in July 1954 should
be regarded as having lapsed or become unenforceable against it
as a result of events and circumstances which have since occurred.

(Signed) Percy SPENDER.

113