INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
RIGHT OF PASSAGE OVER
INDIAN TERRITORY

(PORTUGAL v. INDIA)
PRELIMINARY OBJECTIONS

JUDGMENT OF NOVEMBER 26th, 1957

1957

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU
DROIT DE PASSAGE
SUR TERRITOIRE INDIEN
(PORTUGAL c. INDE)
EXCEPTIONS PRELIMINAIRES

ARRET DU 26 NOVEMBRE 1957
This Judgment should be cited as follows:
“Case concerning right of passage over Indian territory
(Preliminary Objections),
Judgment of November 26th, 1957: 1.C.]. Reports 1957, p. 125.”

Le présent arrét doit étre cité comme suit:
« Affaire du droit de passage sur territoire indien
(Exceptions préliminaires),
Arrêt du 26 novembre 1957: C.I. J. Recueil 1957, p. 125.»

Sales number 171
N° de vente :

125

INTERNATIONAL COURT OF JUSTICE

YEAR 1957

1957
November 26th November 26th, 1957

General List :
| CASE CONCERNING
RIGHT OF PASSAGE OVER

INDIAN TERRITORY
(PORTUGAL x. INDIA)
PRELIMINARY OBJECTIONS

Jurisdiction of Court.—Optional Clause.—Article 36 of Statute.—
Preliminary Objection.— Condition in Declaration providing for
exclusion of categories of disputes at any time during validity of Declara-
tion.— Consistency of Condition with Article 36 of Statute —Tctal and
partial denunciation.— Retroactive effect of exclusion.

Deposit of Declaration with Secretary-General._—Interval betweei
deposit of Declaration and filing of Application instituting proceedings.—
Transmission by Secretary-General of copy of Declaration.

Article 36 (2) of Statute.—Prior definition of dispute through nego-
trations.

Reservation of disputes as to matters falling within domestic jurisdic-
tion.— Joinder of Objection to merits.

Objection based on reservation ratione tem poris.—‘‘Dispuies’”’ and
‘facts or situations’ prior to specified date.— Joinder of Objection to
merits.

JUDGMENT

Present: President HACKWORTH; Vice-President Bapaw1; Judges
GUERRERO, BASDEVANT, WINIARSKI, ZORICIC, KLAESTAD,
Reap, ARMAND-UGox, KojyEevnikov, Sir Muhammad
ZAFRULLA KHAN, Sir Hersch LAUTERPACHT, MORENO
Quintana, CORDOVA, WELLINGTON Koo; Judges ad hoc
CHAGLA and FERNANDES; Registrar LOPEZ OLIvAN.
126 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

In the case concerning right of passage over Indian territory,

between

the Republic of Portugal,
represented by
Dr. Jodo de Barros Ferreira da Fonseca, Ambassador of Portugal
to the Netherlands,
as Agent,
and by
Professor Inocéncio Galväo Telles, Director of the Faculty of
Law of Lisbon, Member of the Upper House,
as Agent, Advocate and Counsel,
assisted by
M. Maurice Bourquin, Professor in the Faculty of Law of the
University of Geneva and in the Graduate Institute of Inter-
national Studies,
as Advocate and Counsel,
and by
M. Pierre Lalive d’Epinay, Professor in the Faculty of Law of
the University of Geneva,

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

Dr. Alexandre Lobato, Secretary of the Centre for Overseas
Historical Studies,

as Expert Advisers,

and by

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

as Secretary,

and

the Republic of India,
represented by
Shri B. K. Kapur, Ambassador of India to the Netherlands,
as Agent,
assisted by
Shri M. C. Setalvad, Attorney-General of India,
The Right Hon. Sir Frank Soskice, Q.C., M.P.,

Professor C. H. M..Waldock, C.M.G., O.B.E., Q.C., Chichele Pro-
fessor of Public International Law in the University of Oxford,
127 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

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

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

as Counsel,

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:

On December 22nd, 1955, the Minister of Portugal to the
Netherlands, acting on the instructions of his Government, filed
on that date with the Registrar an Application signed by himself
as the appointed Agent of the Portuguese Government and sub-
mitting to the Court a dispute between the Republic of Portugal
and the Republic of India concerning the right of passage over
Indian territory between the territory of Daman (littoral Daman)
and the enclaved territories of Dadra and Nagar-Aveli as well as
between each of the two last-mentioned territories.

In the Application, the Government of Portugal stated that
the Court had jurisdiction in the dispute for the reason that
both Portugal and India had accepted the Optional Clause which
forms the subject of Article 36, paragraph 2, of the Statute of
the Court. The Application was communicated to the Government
of India in conformity with Article 40, paragraph 2, of the Statute,
on the day on which it was filed. It was also notified under Arti-
cle 40, paragraph 3, of the Statute to the other Members of the
United Nations and to other non-member States entitled to appear
before the Court.

By an Order of March 13th, 1956, the Court fixed June 15th,
1956, as the time-limit for the filing of the Memorial of the Govern-
ment of the Republic of Portugal, and December 15th, 1956, as
the time-limit for the filing of the Counter-Memorial of the Govern-
ment of the Republic of India. In the same Order the Court reserved
the rest of the procedure for further decision. The Memorial was
filed within the prescribed time-limit. At the request of the Govern-
ment of India, which had announced its intention to submit a
Preliminary Objection to the jurisdiction of the Court, the time-
limit for the filing of the Counter-Memorial, or of the Preliminary
Objection, was extended, by an Order of November 27th, 1956,
to April 15th, 1957. Within the new time-limit thus fixed, the
Government of India filed a « Preliminary Objection » designed, on

6
128 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

various grounds stated therein, to obtain a finding from the Court
that it is without jurisdiction to entertain the Portuguese Appli-
cation.

On April 16th, 1957, an Order, recording that the proceedings
on the merits were suspended under Article 62, paragraph 3, of
the Rules of Court, fixed a time-limit expiring on June 15th, 1957,
for submission by the Government of Portugal of a written
statement containing its Observations and Submissions on the
Preliminary Objections. Subsequently, at the request of the
Government of Portugal, the Court, by an Order of May 18th,
1957, extended that time-limit to August 15th, 1957. On that
date, the written statement was filed and the case, in so far as
the Preliminary Objections were concerned, was ready for hearing.

The Honorable Mahomed Ali Currim Chagla, Chief Justice of
Bombay, and M. Manuel Fernandes, Director-General at the
Ministry of Justice of Portugal and Member of the International
Relations Section of the Upper House, were respectively chosen,
in accordance with Article 31, paragraph 3, of the Statute, to sit
as Judges ad hoc in the present case by the Government of India
and the Government of Portugal.

Sittings were held on September 23rd, 24th, 25th, 26th, 27th
and 30th and on October ist, 2nd, 3rd, 5th, 7th, 8th, roth and
rith, 1957, in the course of which the Court heard oral arguments
and replies from Shri B. K. Kapur, Shri M. C. Setalvad, Professors
Waldock and Guggenheim, and Sir Frank Soskice, on behalf of
the Government of India, and from M. de Barros Ferreira da
Fonseca, and Professors Galväo Telles and Maurice Bourquin, on
behalf of the Government of Portugal.

In the course of the written and oral proceedings, the following
Submissions were made 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
beneficiary of a right of passage between its territory of Damäo
(littoral Damäo) 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 diffi-
culties and in the manner and to the extent required by the effec-
tive exercise of Portuguese sovereignty in the said territories.

(b) To recognize and declare that India has prevented and
continues to prevent the exercise of the right in question, thus
committing an offence to the detriment of Portuguese sovereignty
over the enclaves of Dadra and Nagar-Aveli and violating its
international obligations deriving from the above-mentioned
sources and from any others, particularly treaties, which may be
applicable.

(c) To adjudge that India should put an immediate end to this
de facto situation by allowing Portugal to exercise the above-
129 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

mentioned right of passage in the conditions herein set out.”

On behalf of the same Government, 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;
(6) that it must therefore abstain from any act capable of
hampering 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.”

On behalf of the Government of India, in the Preliminary Objec-
tions:

“The Government of India, accordingly, asks the Court to
adjudge and declare that it is without jurisdiction to entertain
the Portuguese Application, dated 22nd December, 1955, on one or
more of the following grounds:

A. (1) The third condition of the Portuguese Declaration of
19th December, 1955, is incompatible with the provisions of the
Optional Clause of the Statute of the Court so that the said
Declaration is totally invalid as a recognition of the compulsory
jurisdiction of the Court under that Clause; and, in consequence,

(2) The Portuguese Application of 22nd December, 1955, which
is expressed to found the jurisdiction of the Court in the present
case upon the said Declaration, was ineffective to establish the
compulsory jurisdiction of the Court under the Optional Clause
(paragraphs 25-34).

B. (x) The filing of the Application in the present case by the
Portuguese Government on 22nd December, 1955, both violated
the principle of equality of States before the Court, and disregarded
the express condition of reciprocity contained in the Declaration
of the Government of India, dated 28th February, 1940; and, in
consequence,
130 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

9

(2) The Portuguese Application of 22nd December, 1955, was
ineffective to establish the compulsory jurisdiction of the Court
under the Optional Clause (paragraphs 35-44).

C. (1) Portugal, before filing her Application in the present
case, did not comply with the rule of customary international law
requiring her to undertake diplomatic negotiations and continue
them to the point where it was no longer profitable to pursue
them, because

(A) She filed her Application on 22nd December, 1955,
without ever previously having given to India the slightest
indication that she made any such claims to legal rights of
passage as she has since formulated in the Memorial ; and

(B) She filed her Application on 22nd December, 1955,
immediately after making her Declaration accepting the
Optional Clause, and only shortly after becoming a Member of
the United Nations without attempting to pursue her diplo-
matic negotiations with India in the new situation created by
the change in the legal relations of the Parties brought about
by these events; and, in consequence,

(2) When Portugal filed her Application in the present case
on 22nd December, 1955, there was not any legal dispute between
the Parties and, in addition, Portugal had not fulfilled an essential
condition for the invoking of the Court’s compulsory jurisdiction
under the Optional Clause (paragraphs 45-50).

D. (1) The filing of the Application in the present case by the
Portuguese Government on 22nd December, 1955, was a violation
of the reciprocal right conferred upon India, both by the terms of
the Optional Clause, and by the terms of India’s Declaration, to
exercise the power to make reservations contained in the third
condition of the Portuguese Declaration, dated 19th December,
1955;

{2) The filing of the Application on 22nd December, 1955,
having regard to the terms of the Portuguese third condition, was
also an abuse of the Optional Clause and of the procedure of the
Court; and, in consequence,

(3) For each and both of the above reasons the Portuguese
Application of 22nd December, 1955, was ineffective to establish
the compulsory jurisdiction of the Court under the Optional
Clause (paragraphs 51-58).

E. (1) The dispute relates to a question which under inter-
national law is, in principle, a question falling exclusively within
the jurisdiction of India (paragraphs 161-168).

(2) A summary view of the facts shows that each of the inter-
ested States has for a long time past treated the matters now
in dispute as falling exclusively within the jurisdiction of the
territorial sovereign and, in view of the principle in E (1) above,
this suffices to establish conclusively that the present dispute is
one relating to a question which, by international law, falls
exclusively within the jurisdiction of India (paragraphs 156-159).
131 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

(3) Asummary view of the facts shows that in the past Portugal
has unequivocally recognized that the matters now in dispute
relate to a question falling exclusively within the jurisdiction
of the territorial sovereign and the recognition of this by Portugal
suffices to establish conclusively that the present dispute is one
relating to a question which by international law falls exclusively
within the jurisdiction of India (paragraphs 158-159).

(4) Independently of the attitude of the Parties, a summary
view of the relevant facts and applicable law shows that none of
the legal grounds of claim based on treaties, custom or general
principles of law, which are invoked by the Government of
Portugal in the Memorial, justify the provisional conclusion that
they are of real importance judicially for determining the legal
position of the Parties with respect to the passage of Portuguese
persons and goods between Daman and the enclaves, with the
result that these legal grounds of claim do not afford any basis
for holding that the present dispute is not one relating to a
question which by international law falls exclusively within the
jurisdiction of India (paragraphs 160-197).

(5) Having regard to the principle in E (1) above, the present
dispute, for each of the several reasons given in E (2), E (3) and
E (4) above, is a dispute relating to a question which by inter-
national law falls exclusively within the jurisdiction of India and,
as such, is excepted from India’s acceptance of compulsory
jurisdiction under the Optional Clause by the express terms of
her Declaration dated 28th February, 1940 (paragraphs 159-197).

F. (1) If, contrary to the contentions of the Government of
India, Portugal establishes that she was asserting some claim
to rights of passage between Daman and the enclaves during the
period from 1891 to the filing of the Application in the present
case, the facts show that this claim was disputed by the British/
Indian Government; and, in consequence,

(2) The dispute submitted to the Court in the Portuguese
Application of 22nd December, 1955, is in that event a dispute
with regard to a situation antecedent to 5th February, 1930,
and, as such, is excluded rafione temporis from India’s acceptance
of compulsory jurisdiction by the express terms of her Declaration
dated 28th February, 1940 (paragraphs 198-20%).”

On behalf of the Government of Portugal, in its Observations and
Submissions in regard to the Preliminary Objections of the Govern-
ment of India, the following Submissions were stated:

10

“The Portuguese Government considers that it has shown that

not one of the six Preliminary Objections advanced by the Govern-
ment of India is justified.

Accordingly, it respectfully begs the Court to reject them and

to invite the Government of India to present its Submissions on
the merits of the dispute.”
132 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

On behalf of the Government of India at the sitting of Sep-
tember 27th, 1957:

IT

“Farst Objection

The Portuguese Declaration of 19 December, 1955, by reason
of the incompatibility of its third condition with the object and
purpose of the Optional Clause of the Statute of the Court, is
wholly invalid as a recognition of the compulsory jurisdiction
of the Court under that Clause; and, as the Portuguese Appli-
cation of 22 December, 1955, purports to found the jurisdiction
of the Court only upon the said invalid Declaration, the Court
is without jurisdiction to entertain that. Application.

Second Objection

Since the Portuguese Application of 22 December, 1955, was
filed before the lapse of such brief period as in the normal course
of events would enable the Secretary-Géneral of the United
Nations, in compliance with Article 36, paragraph 4, of the Statute
of the Court, to transmit copies of the Portuguese Declaration of
19 December, 1955, to other parties to the Statute, the filing of
the said Application violated the equality, mutuality and reci-
procity to which India was entitled under the Optional Clause
and under the express condition of reciprocity contained in her
Declaration of 28 February, 1940, and thus the conditions
necessary to entitle the Government of Portugal to invoke the
Optional Clause against India did not exist when the said Appli-
cation was filed; and in consequence the Court is without juris-
diction to entertain the said Application.

Fourth Objection

Since the Portuguese Application of 22 December, 1955, was
filed before the lapse of such brief period as in the normal course
of events would enable the Secretary-General of the United
Nations, in compliance with Article 36, paragraph 4, of the Statute
of the Court, to transmit copies of the Portuguese Declaration of
19 December, 1955, to other parties to the Statute, the filing of
the said Application violated the reciprocal right conferred upon
India by the Optional Clause and by India’s Declaration of
28 February, 1940, to invoke the third condition contained in the
Portuguese Declaration of 19 December, 1955, equally and under
the same conditions as Portugal; and thus the conditions neces-
sary to entitle the Government of Portugal to invoke the Optional
Clause against India did not exist when the said Application was
filed and the filing of the said Application constituted an abuse
both of the Optional Clause and of the process of the Court; and
in consequence the Court is without jurisdiction to entertain the
said Application.

Third Objection

Since the Portuguese Application of 22 December, 1955, was filed
before the Portuguese claim of a right of passage for persons
and goods across Indian territory had been made the subject of
diplomatic negotiations, the subject-matter of the claim had
133 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

not yet been determined and there was not yet any legal and
justiciable dispute between the Parties which could be referred
to the Court under the Optional Clause; and thus the conditions
necessary to entitle the Government of Portugal to invoke the
Optional Clause against India did not exist when the said Appli-
cation was filed; and in consequence the Court is without juris-
diction to entertain the said Application.

Fifth Objection

Since the acceptance of compulsory jurisdiction of the Court for
the categories of disputes listed in the Optional Clause does not
include disputes with regard to questions which by international
law fall exclusively within the jurisdiction of India and since also
India’s Declaration of 28 February, 1940, expressly excluded
such disputes from the scope of her acceptance of compulsory
jurisdiction under the Optional Clause; and since in principle the
subject-matter of the present dispute, namely, the transit of
persons and goods over Indian territory between Daman and the
enclaves, relates to a question which by international law falls
exclusively within the jurisdiction of India, it is for Portugal to
show legal grounds of claim which would place a limitation on
India’s exercise of her exclusive jurisdiction with respect to the
subject-matter of the dispute and which are reasonably arguable
under international law;

and whereas:

(a) the authorities cited in paragraphs 163 to 168 of India’s.
Preliminary Objection establish that the Portuguese claim to
a right of transit, whether it is considered to be with or
without immunity, cannot be regarded as a reasonably
arguable cause of action under international law unless it is
based on the express grant or specific consent of the terri-
torial sovereign; and since the facts presented to the Court
in the pleadings of the Parties show no such express grant or
specific consent of the territorial sovereign as could place a
limitation on the exercise of India’s jurisdiction with respect
to the subject-matter of the dispute, the Fifth Objection
should forthwith be sustained;

and whereas, in the alternative:

(b) none of the grounds of claim put forward by the Portuguese
Government in its Application and Memorial, namely, treaty,
custom and general principles of law, can be regarded on
the facts and the law which have been presented to the Court
as reasonably arguable under international law, the Fifth
Objection must for this reason also be sustained ;

and whereas, furthermore:
(c) regardless of the correctness or otherwise of the conclusions
set out in paragraphs 4 (a) and 4(0), the uncontradicted facts
presented in the pleadings of the Parties establish that the

12
134 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

question of transit between Daman and the enclaves has
always been dealt with both by Portugal and the territorial
sovereign on the basis that it is a question within the exclusive
competence of the territorial sovereign ;

and whereas:

(d) both Portugal and India have accepted the compulsory juris-
diction of the Court only for legal disputes which may be
decided by the Court under the provisions of Article 38, para-
graph 1, of the Statute; and the dispute submitted to the
Court by Portugal is not such a dispute and there has been
no agreement between the Parties to submit the dispute to
the Court under the provisions of Article 38, paragraph 2, of
the Statute; in consequence, for this reason also, the Fifth
Objection should be sustained.

Sixth Objection

Since India’s Declaration of 28 February, 1940, limited her
acceptance of the compulsory jurisdiction of the Court to disputes
arising after 5 February, 1930, with regard to situations or facts
subsequent to that date; and since the claim of Portugal to a
right of transit between Daman and the enclaves is formulated in
her Application and Memorial as a claim of right dated from a
period much before 5 February, 1930; and since that claim, if it
was ever made, has been persistently opposed by the territorial
sovereign, the present dispute as submitted to the Court by
Portugal is a dispute excluded from India’s acceptance of compul-
sory jurisdiction under the Optional Clause by the express terms
of the said limitation in India’s Declaration of 28 February, 1940;
and in consequence the Court is without jurisdiction to entertain
the Portuguese Application of 22 December, 1955.”

On behalf of the Government of Portugal, at the sitting of Octo-
ber 3rd, 1957:

13

“T, On the First Preliminary Objection

Whereas the reservation in the Portuguese Declaration of Decem-
ber 19th, 1955, on which the Government of India relies in support
of its contention that the said Declaration is wholly invalid as a
recognition of the compulsory jurisdiction of the Court, in no way
contravenes the requirements of the Statute of the Court and cannot
therefore be regarded as invalid; .

Whereas the invalidity of that reservation would not, in any event,
involve the invalidity of the Declaration itself;

Whereas the Application by which the Portuguese Government
has referred the present dispute to the Court has therefore, in this
respect, a valid foundation; |

For these reasons,

May it please the Court
to dismiss the First Preliminary Objecticn of the Government of
India.
135 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUNGM. 26 XI 57)

14

II. On the Second Preliminary Objection

Whereas Declarations made in accordance with Article 36, para-
graph 2, of the Statute enter into force at once and have the effect
of making the jurisdiction of the Court compulsory as between
States accepting the same obligation;

Whereas no special condition has to be satistied for this purpose;

Whereas, in particular, it is not made a condition for the exercise
of its rights by the declarant State, by the submission to the Court
of a dispute by means of an Application, that its Declaration should
have been brought to the knowledge of the State which is the other
Party to the dispute;

And whereas it is likewise not made a condition that a certain
period of time should have elapsed after the making of the
Declaration;

For these reasons,
May it please the Court

to dismiss the Second Preliminary Objection of the Government of
India.

Ill. On the Third Preliminary Objection

Whereas international law does not make the institution of
proceedings by means of a unilateral Application dependent on the
prior exhaustion of diplomatic negotiations, in the absence of a
treaty-provision stipulating such a condition;

Whereas no provision of this kind exists in the present case,
and whereas the Portuguese Government was therefore under no
obligation to pursue diplomatic negotiations with the Government
of India up to the point at which they became futile;

Whereas it is, in any event, for the (;overnment of India to prove
the insufficiency of these negotiations, and whereas it not only has
failed to adduce such proof but proof to the contrarv is contained
in the documents; .

Whereas these negotiations made clear beyond question the
existence of a dispute between the Parties;

Whereas it is incorrect to assert that these negotiations were
not carried on upon the legal plane, since the Portuguese Govern-
ment constantly protested against the violation by the Government
of India of the rights which it is claiming in the present proceedings,
and since it drew attention to the responsibility which the Govern-
ment of India thereby incurred;

For these reasons,

May it please the Court
to dismiss the Third Preliminary Objection of the Government of
India.

IV. On the Fourth Preliminary Objection

Whereas the principle of reciprocity, laid down by Article 36 of
the Statute of the Court, relates to the extent of the obligations
136 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

binding upon the States involved in a dispute, at the time when
that dispute is referred to the Court;

Whereas it does not apply to the measures which the said States
would have been entitled to take before the case was brought before
the Court, either for the purpose of putting an end to the binding
force of their Declarations or for the purpose of restricting their
scope;

Whereas the right, of which the Government of India claims to
have been wrongfully deprived as a result of the speedy filing of the
Portuguese Application, is not therefore covered by the principle of
reciprocity as the scope of that principle is laid down by Article 36;

Whereas, even if this were not so, it would have been quite
unnecessary for the Government of India to invoke this principle
in order to limit the scope of its obligations relating to the compul-
sory jurisdiction of the Court, before the filing of the Application
instituting proceedings, and whereas it was, therefore, in order to
obtain this result, quite unnecessary for it to have cognizance of
the Portuguese Declaration ;

Whereas, furthermore, there is a flagrant contradiction between
the First and Fourth Objections, for if the Portuguese reservation
were without any legal validity, as contended by the Government
of India in its First Objection, 1t is difficult to see how that Govern-
ment could have relied on the said reservation for the purpose of
drawing the consequences which it envisages in its Fourth Objection;

For these reasons,

May it please the Court

to dismiss the Fourth Preliminary Objection of the Government of
India.

V. On the Fifth Preliminary Objection
Whereas the Government of India requests the Court to derogate

. from the provisions of Article 43 of the Statute and of the corre-

sponding articles oi the Rules of Court relating to the normal course
of the proceedings in contentious cases, claiming that, by inter-
national law, the questions which are the subject-matter of the
present dispute fall exclusively within the jurisdiction of India;

Whereas, in order to adjudicate upon this claim in the light of
all the necessary information, argument upon the merits would be
necessary, while the Government of India in fact requests the
Court definitively to dispense with such further argument by
holding itself hic ef nung without jurisdiction to adjudicate upon
the Portuguese claim;

Whereas such a contention could in any event only be accepted
if the Government of India showed that a summary consideration
of the grounds relied upon by Portugal sufficed to make it clear
that those grounds are manifestly lacking in substance and that it
would consequently be superfluous to prolong the proceedings by
complying with the relevant provisions of the Statute and of the
Rules of Court;

Whereas the Government of India has failed to prove this, and
whereas the arguments adduced, on either side, on the contrary
137 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

16

show the need for full discussion in order to enable the Court to pass
upon the substance of the grounds in question;

Whereas, furthermore, it is incorrect to assert that the subject-
matter of the present dispute has in the past been regarded as
concerning a matter within the exclusive jurisdiction of India, and
that Portugal has indeed recognized that it possesses this character;

Whereas the assertions put forward in this connection by the
Government of India in paragraph 159 of its Preliminary Objections
are based upon a mistaken interpretation of the claim submitted
to the Court;

l'or these reasons,

May it please the Court

to dismiss the Fifth Preliminary Objection of the Government of
India ;

Or, in the alternative:
to join it to the merits.

VI. On the Stxth Preliminary Objection

Whereas the Government of India, by its Declaration of Febru-
ary 28th, 1940, accepted the jurisdiction of the Court over all dis-
putes arising after February 5th, 1930, ‘with regard to situations
or facts subsequent to the same date’;

Whereas the situations and facts which are to be taken into
consideration in applying this clause are solely those which constitute
the source of the dispute;

Whereas the situations and facts which are the source of the
dispute are all subsequent to February 5th, 1930;

Whereas the Sixth Objection is therefore devoid of substance;

Whereas, in order to avoid this conclusion, the Indian Government
has merely put forward a hypothesis and made an assertion, which
is formally disputed, to the effect that Portugal neither claimed
nor exercised a right of passage before February 5th, 1930, at least
since the abrogation of the British-Portuguese Treaty of 1878;

Whereas full discussion of these points is essential, particularly
with regard to the true scope of the said Treaty and of the effects
of its abrogation ;

Whereas such a discussion would raise questions of fact and of
law with regard to which the Parties are, in several respects, in
disagreement and which are too closely linked with the merits for
the Court to be able to pass upon them, in the light of all the neces-
sary information, within the compass of its consideration of a
preliminary objection;

For these reasons,

May it please the Court
to dismiss the Sixth Preliminary Objection of the Government of
India ;

Or, in the alternative:
to join it to the merits.
138 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

VII. Whereas, in its Conclusions relating to the Fifth Preliminary
Objection, the Government of India maintains:

‘{&) both Portugal and India have accepted the compulsory
jurisdiction of the Court only for legal disputes which may
be decided by the Court under the provisions of Article 38,
paragraph 1, of the Statute; and the dispute submitted
to the Court by Portugal is not such a dispute and there has
been no agreement between the Parties to submit the dispute
to the Court under the provisions of Article 38, paragraph 2,
of the Statute; in consequence for this reason also the Fifth
Objection should be sustained’ ;

Whereas this constitutes a new Objection {i.e. an Objection not
advanced in the written pleadings] ;

Whereas it is manifestly lacking in substance as is shown by the
legal grounds relied upon by the Portuguese Government in support
of its Application ;

Whereas, furthermore, in accordance with Article 62 of the
Rules of Court, preliminary objections must be filed by a party
at the latest before the expiry of the time-limit fixed for the delivery
of its first pleading ;

Whereas, in these circumstances, the said Objection would in
any event be inadmissible;

For these reasons,
May it please the Court
to dismiss the new Objection raised by the Government of India in

‘ the guise of an argument in support of its Fifth Preliminary Objec-

tion.

VIII. Whereas the Application instituting proceedings was filed
in the Registry of the Court on December 22nd, 1955;

Whereas the risk exists that the dispute may become aggravated
so long as no decision on the merits is given and whereas that aggra-
vation might compromise the execution of the said decision;

For these reasons,

May it please the Court
to recall to the Parties the universally admitted principle that they
should facilitate the accomplishment of the task of the Court by
abstaining from any measure capable of exercising a prejudicial
effect in regard to the execution of its decision or which might bring
about either an aggravation or an extension of the dispute.”

On behalf of the Government of India, the following amended and
supplementary Submissions were filed at the sitting of Octo-
ber 8th, 1957:

17

CT. Sixth Objection

Since India’s Declaration of February 28, 1940, limited her
acceptance of the compulsory jurisdiction of the Court to disputes
arising after 5th February, 1930, with regard to situations or
facts subsequent to that date; and since the present dispute as
139 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

submitted to the Court by Portugal is a dispute which did not arise
after 5th February, 1930, and was in any case a dispute with regard
to situations or facts which were not subsequent to that date, the
dispute is excluded from India’s acceptance of compulsory juris-
diction under the Optional Clause by the express terms of the said
limitation in India’s Declaration of February 28, 1940, and in
consequence the Court is without jurisdiction to entertain the
Portuguese Application of 22nd December, 1955.

2. With regard to the Seventh Conclusion of the Government of
Portugal

Since the submission of the Government of India in support of its
Fifth Preliminary Objection quoted in the Seventh Conclusion of
the Government of Portugal in no sense constitutes a new objection,
but is simply one aspect of the contention of the Government of
India that the matters in dispute fall exclusively within the domes-
tic jurisdiction of India; and since the said submission of the Gov-
ernment of India is well-founded; in consequence the Seventh Con-
clusion of the Government of Portugal should be rejected.

3. With regard to the Eighth Conclusion of the Government of
Portugal

Since the Government of Portugal has not invoked the power of
the Court to indicate provisional measures under Article 41 of the
Statute of the Court; and since that Government asks the Court
to address an admonition to the Parties analogous to an indication
of provisional measures in circumstances which would not justify
the Court in making an Order under Article 41; and since that
Government has not disclosed any valid grounds for asking the
Court to address such an exceptional admonition to the Parties,
and since it would in the circumstances of the present case be
wholly inappropriate to accede to the request of the Government
of Portugal; in consequence, the Eighth Conclusion of the Govern-
ment of Portugal should be rejected.”

On behalf of the Government of Portugal, the following Submis-
sions were filed at the sitting of October 11th, 1957:

18

‘Whereas the Government of India, by its Declaration of Febru-
ary 28th, 1940, has 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;

Whereas, by the terms of the Application instituting proceedings,
the purpose of the reference of the dispute to the Court is to secure:

(a) recognition of the right of passage existing in favour of
Portugal between its enclaved territories of Dadra and Nagar-
Aveli and between these territories and its territory of Daman
(littoral Daman) ;

(b) a finding that India has prevented and continues to prevent
the exercise of that right; and
140 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

(c) that India should put an immediate end to this situation;

Whereas the earlier date of the grounds on which the claim is
based is not relevant for the purpose of applying the reservation
in the Indian Declaration of February 28th, 1940, on which the
Sixth Preliminary Objection is founded;

Whereas, on the other hand, the situations and facts which are
relevant in applying such a reservation are solely those which
constitute the source of the dispute;

Whereas the dispute referred to the Court by the Portuguese
Application of December 22nd, 1955, the purpose of which is recalled
above, is undeniably subsequent to February 5th, 1930;

Whereas the same is true of the situations and facts which
constitute the source of that dispute;

For these reasons,
May it please the Court

to dismiss the Sixth Preliminary Objection of the Government of
India.”

a
* *

The Declarations by which the Parties accepted the compulsory

jurisdiction of the Court are as follows:

19

Declaration of India of February 28th, 1940:

“On behalf of the Government of India, I now declare that
they accept as compulsory ipso facto and without special convention,
on condition of reciprocity, the jurisdiction of the Court, in confor-
mity with paragraph 2 of Article 36 of the Statute of the Court for
a period of 5 years from to-day’s date, and thereafter until such
time as notice may be given to terminate the acceptance, over all
disputes arising after February 5th, 1930, with regard to situations
or facts subsequent to the same date, other than:

disputes in regard to which the Parties to the dispute have agreed
or shall agree to have recourse to some other method of peaceful
settlement;

disputes with the government of any other Member of the League
which is a Member of the British Commonwealth of Nations, all
of which disputes shall be settled in such manner as the Parties
have agreed or shall agree;

disputes with regard to questions which by international law fall
exclusively within the jurisdiction of India; and

disputes arising out of events occurring at a time when the Govern-
ment of India were involved in hostilities;

and subject to the condition that the Government of India reserve
the right to require that proceedings in the Court shall be suspended
in respect of any dispute which has been submitted to and is under
consideration by the Council of the League of Nations, provided
that notice to suspend is given after the dispute has been submitted
to the Council and is given within 10 days of the notification of the
initiation of the proceedings in the Court, and provided also that
141 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

such suspension shall be limited to a period of 12 months or such
longer period as may be agreed by the Parties to the dispute or
determined by a decision of all the Members of the Council other
than the Parties to the dispute.”’

Declaration of Portugal of December roth, 1955:

“Under Article 36, paragraph 2, of the Statute of the International
Court of Justice, I declare on behalf of the Portuguese Government
that Portugal recognizes the jurisdiction of this Court as compulsory
ipso facto and without special agreement, as provided for in the
said paragraph 2 of Article 36 and under the following conditions:

(1) The present declaration covers disputes arising out of
events both prior and subsequent to the declarations of
acceptance of the “optional clause” which Portugal made
on December 16, 1920, as a party to the Statute of the
Permanent Court of International Justice.

(2) The present declaration enters into force at the moment it
is deposited with the Secretary-General of the United
Nations; it shall be valid for a period of one year, and
thereafter until notice of its denunciation is given to the
said Secretary-General.

(3) The Portuguese Government reserves the right to exclude
from the scope of the present declaration, at any time during
its validity, any given category or categories of disputes,
by notifying the Secretary-General of the United Nations
and with effect from the moment of such notification.”

*%
* *

India has filed six Preliminary Objections to the exercise of
jurisdiction by the Court in the present case. The Court will now
proceed to examine these Objections.

First Preliminary Objection

The First Preliminary Objection of the Government of India is
to the effect that the Court is without jurisdiction to entertain
the Application of Portugal on the ground that the Portuguese
Declaration of Acceptance of the jurisdiction of the Court of
December roth, 1955, is invalid for the reason that the Third
Condition of the Declaration is incompatible with the object and
purpose of the Optional Clause. There are, in the view of the
Government of India, three main reasons for such incompatibility.

The Third Condition of the Declaration of Portugal provides as
follows:

“3) The Portuguese Government reserves the right to exclude
from the scope of the present declaration, at any time during
its validity, any given category or categories of disputes, by
notifying the Secretary-General of the United Nations and
with effect from the moment of such notification.”

20
142 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

In the first instance, the Government of India maintains that
that Condition gives Portugal the right, by making at any time a
notification to that effect, to withdraw from the jurisdiction of the
Court a dispute which has been submitted to it prior to such a
notification. This is what in the course of the proceedings was
described as the retroactive effect attaching to that notification.
India asserts that such retroactive effect is incompatible with the
principle and notion of the compulsory jurisdiction of the Court as
established in Article 36 of the Statute and that the Third Condition
is invalid inasmuch as it contemplates an effect which is contrarv
to the Statute.

The Government of Portugal has contested that interpretation
and has affirmed that the Third Condition does not have such
retroactive effect and that, in consequence, it is not incompatible
with Article 36 of the Statute.

In order to decide whether, as maintained by the Government of
India, the Third Condition appended by Portugal is invalid, and
whether such invalidity entails the invalidity of the Declaration
in which it is contained, the Court must determine the meaning and
the effect of the Third Condition bv reference to its actual wording
and applicable principles of law.

The words ‘‘with effect from the moment of such notification”
cannot be construed as meaning that such a notification would have
retroactive effect so as to cover cases already pending before the
Court. Construed in their ordinary sense, these words mean simply
that a notification under the Third Condition applies only to dis-
putes brought before the Court after the date of the notification.
Such an interpretation leads to the conclusion that no retroactive
effect can properly be imputed to notifications made under the
Third Condition. It is a rule of law generally accepted, as well as
one acted upon in the past by the Court. that, once the Court has
been validly seised of a dispute, unilateral action by the respondent
State in terminating its Declaration, in whole or in part, cannot
divest the Court of jurisdiction. In the Nottebohm case the Court
gave expression to that principle in the following words:

“An extrinsic fact such as the subsequent lapse of the Declaration,
by reason of the expiry of the period or by denunciation, cannot
deprive the Court of the jurisdiction already established. 7 (I.C.T.

Reports 1953, p. 123.)

That statement by the Court must be deemed to apply both to
total denunciation, and to partial denunciation as contemplated in
the Third Portuguese Condition. It is a rule of interpretation that a
text emanating from a Government must, in principle, be inter-
preted as producing and as intended to produce effects in accordance
with existing law and not in violation of it.

21
I43 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

The second reason, contended for by the Government of India,
for the incompatibility of the Third Portuguese Condition with
the object and purpose of the Optional Clause, is that it has intro-
duced into the Declaration a degree of uncertainty as to reciprocal
rights and obligations which deprives the acceptance of the com-
pulsory jurisdiction of the Court of all practical value. In particular,
it was contended that, in consequence of the Third Condition, the
other Signatories are in a continuous state of uncertainty as to
their reciprocal rights and obligations which may change from day
to day.

While it must be admitted that clauses such as the Third Condition
bring about a degree of uncertainty as to the future action of the
accepting government, that uncertainty does not attach to the
position actually established by the Declaration of Acceptance or
as it might be established in consequence of recourse to the Third
Condition.

As Declarations, and their alterations, made under Article 36
must be deposited with the Secretary-General, it follows that, when
a case is submitted to the Court, it is always possible to ascertain
what are, at that moment, the reciprocal obligations of the Parties
in accordance with their respective Declarations. Under the existing
system, Governments can rely upon being informed of any changes
in the Declarations in the same manner as they are informed of
total denunciations of the Declarations. [t is true that during the
interval between the date of a notification to the Secretary-General
and its receipt by the Parties to the Statute, there may exist
some element of uncertainty. However, such uncertainty ts inherent
in the operation of the system of the Optional Clause and does not
affect the validity of the Third Condition contained inthe Portu-
guese Declaration.

It must also be noted that, with regard to any degree of uncer-
tainty resulting from the right of Portugal to availitself at any time
of its Third Condition of Acceptance, the position is substantially
the same as that created by the right claimed by many Signatories
of the Optional Clause, including India, to terminate their Decla-
rations of Acceptance by simple notification without any obligatory
period of notice. India did so on January 7th, 1956, when it notified
the Secretary-General of the denunciation of its previous Decla-
ration of Acceptance, for which it simultaneously substituted a
new Declaration incorporating reservations which were absent
from its previous Declaration. By substituting, on January 7th,
1956, a new Declaration for its earlier Declaration, India achieved,
in substance, the object of Portugal’s Third Condition.

It has been argued that there is a substantial difference, in the
matter of the certainty of the legal situation, between the Third
Portuguese Condition and the right of denunciation without notice.

22
144 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

In the view of the Court there is no essential difference, with regard to
the degree of certainty, between a situation resulting from the right
of total denunciation and that resulting from the Third Portuguese
Condition which leaves open the possibility of a partial denunciation
of the otherwise subsisting original Declaration.

Neither can it be admitted, as a relevant differentiating factor,
that while in the case of total denunciation the denouncing State
can no longer invoke any rights accruing under its Declaration, in
the case of a partial denunciation under the terms of the Third
Condition Portugal can otherwise continue to claim the benefits
of its Acceptance. For, as the result of the operation of reciprocity,
any jurisdictional rights which it may thus continue to claim for
itself can be invoked against it by the other Signatories, including
India.

Finally, as the third reason for the invalidity of the Third
Condition, it has been contended that that Condition offends against.
the basic principle of reciprocity underlying the Optional Clause
inasmuch as it claims for Portugal a right which in effect is denied
to other Signatories who have made a Declaration without append-
ing any such condition. The Court is unable to accept that conten-
tion. It isclear that any reservation notified by Portugal in pursuance
of its Third Condition becomes automatically operative against
it in relation to other Signatories of the Optional Clause. If the
position of the Parties as regards the exercise of their rights is in
any way affected by the unavoidable interval between the receipt
by the Secretary-General of the appropriate notification and its
receipt by the other Signatories, that delay operates equally in
favour of or against all Signatories and is a consequence of the
system established by the Optional Clause.

Neither can the Court accept the view that the Third Condition
is inconsistent with the principle of reciprocity inasmuch as it
renders inoperative that part of paragraph 2 of Article 36, which
refers to Declarations of Acceptance of the Optional Clause in
relation to States accepting the ‘‘same obligation”. It is not neces-
sary that the “same obligation” should be irrevocably defined at
the time of the deposit of the Declaration of Acceptance for the
entire period of its duration. That expression means no more than
that, as between States adhering to the Optional Clause, each and
all of them are bound by such identical obligations as may exist at
anv time during which the Acceptance is mutually binding.

As the Court finds that the Third Portuguese Condition is not
inconsistent with the Statute, it is not necessary for it to consider
the question whether, if it were invalid, its invalidity would affect
the Declaration as a whole.

For these reasons, the First Preliminary Objection of the Govern-
ment of India must be dismissed.

23
I45 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

* "ox

Second Preliminary Objection

The Second Preliminary Objection of the Government of India
is based on the allegation that—as the Portuguese Application of
December 22nd, 1955, was filed before the lapse of such brief period
as in the normal course of events would have enabled the Secretary-
General of the United Nations, in compliance with Article 36,
paragraph 4, of the Statute of the Court, to transmit copies of the
Portuguese Declaration of Acceptance of December rgth, 1955, to
the other Parties to the Statute—-the filing of the Application violated
the equality, mutuality and reciprocity to which India was entitled
under the Optional Clause and under the express condition of
reciprocity contained in its Declaration of February 28th, 1940;
that, in consequence, the conditions necessary to entitle the
Government of Portugal to invoke the Optional Clause against
India did not exist when that Application was filed; and that, as
a result, the Court is without jurisdiction to entertain the
Application.

The principle of reciprocity forms part of the system of the
Optional Clause by virtue of the express terms both of Article 36
of the Statute and of most Declarations of Acceptance, including
that of India. The Court has repeatedly affirmed and applied that
principle in relation to its own jurisdiction. It did so, in particular,
in the case of Certain Norwegian Loans (I.C.J]. Reports 1957,
pp. 22-24} where it recalled its previous practice on the subject.
However, it is clear that the notions of reciprocity and equality are
not abstract conceptions. They must be related to some provision
of the Statute or of the Declarations.

The two questions which the Court must now consider are as
follows: in filing its Application on the date that it did, namely,
December 22nd, 1955, did Portugal act in a manner contrary to
any provision of the Statute? If not, did it thereby violate any right
of India under the Statute or under its Declaration?

In the course of the oral argument the Government of India
disclaimed any intention of contending that Portugal was not
entitled to file its Application until the notification of the Secretary-
General had reached the Government of India. The latter merely
maintained that before filing its Application Portugal ought to
have allowed such period to elapse as would reasonably have
permitted the notification of the Secretary-General to take its
“appropriate effects”.

The material dates, as stated by the Government of India, are
as follows: On December 19th, 1955, the Representative of Portugal
to the United Nations made the Declaration, on behalf of the
Government of Portugal, accepting the compulsory jurisdiction of

24
146 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

the Court under the Optional Clause. On December 22nd, the
Government of Portugal filed in the Court the Application insti-
tuting the present proceedings against the Government of India.
On the same day, a telegram was sent by the Court notifying the
Government of India of the filing of the Portuguese Application.
On December 30th, 1955, the Government of India received a copy
of the Portuguese Declaration of Acceptance which had been
obtained from the Court by its Embassy at The Hague. On Janu-
ary Igth, 1956, a copy of the Portuguese Declaration was officially
transmitted to the Government of India by the Secretary-General
of the United Nations in compliance with Article 36, paragraph 4,
of the Statute.

The Government of India has contended that, in filing its Appli-
cation on December 22nd, 1955, the Government of Portugal did
not act in conformity with the provisions of the Statute. The
Court is unable to accept that contention. The Court considers
that, by the deposit of its Declaration of Acceptance with the
Secretary-General, the accepting State becomes a Party to the
system of the Optional Clause in relation to the other declarant
States, with all the rights and obligations deriving from Article 36.
The contractual relation between the Parties and the compulsory
jurisdiction of the Court resulting therefrom are established, “:Aso
jacto and without special agreement”, by the fact of the making
of the Declaration. Accordingly, every State which makes a Decla-
ration of Acceptance must be deemed to take into account the
possibility that, under the Statute, it may at any time find itself
subjected to the obligations of the Optional Clause in relation to a
new Signatory as the result of the deposit by that Signatory of a
Declaration of Acceptance. A State accepting the jurisdiction of
the Court must expect that an Application may be filed against it
before the Court by a new declarant State on the same day on
which that State deposits with the Secretary-General its Declara-
tion of Acceptance. For it is on that very day that the consensual
bond, which is the basis of the Optional Clause, comes into being
between the States concerned. When India made its Declaration of
Acceptance of February 28th, 1940, it stated that it accepted the
jurisdiction of the Court for a specified period ‘‘from to-day’s date”.

It has been contended by the Government of India that as
Article 36 requires not only the deposit of the Declaration of
Acceptance with the Secretary-General but also the transmission
by the Secretary-General of a copy of the Declaration to the Parties
to the Statute, the Declaration of Acceptance does not become
effective until the latter obligation has been discharged. However,
it is only the first of these requirements that concerns the State
making the Declaration. The latter is not concerned with the duty
of the Secretary-General or the manner of its fulfilment. The legal
effect of a Declaration does not depend upon subsequent action or
inaction of the Secretary-General. Moreover, unlike some other

25
147 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

instruments, Article 36 provides for no additional requirement, for
instance, that the information transmitted by the Secretary-General
must reach the Parties to the Statute, or that some period must
elapse subsequent to the deposit of the Declaration before it can
become effective. Any such requirement would introduce an ele-
ment of uncertainty into the operation of the Optional Clause
system, The Court cannot read into the Optional Clause any requi-
rement of that nature.

India has further contended that, even though the filing of the
Application by Portugal be held to be otherwise in accordance with
Article 36, it was effected in a manner which violated rights of
India under the Statute and under its Declaration of Acceptance.

Apart from complaining generaliy of an impairment of its rights
of equality, mutuality and reciprocity under the Statute, India has
not specified what actual right has becn adversely affected by the
manner of the filing of the Portuguese Application. The Court has
been unable to discover what right has, in fact, thus been violated.

As the Court has arrived at the conclusion that the manner of
filing the Portuguese Application was neither contrary to Article 36
of the Statute nor in violation of any right of India under the
Statute, or under its Declaration of Acceptance, the Court must
dismiss the Second Preliminary Objection of the Government of
India.

. *

Fourth Preliminary Objection

As the Second and Fourth Preliminary Objections are concerned
with cognate aspects of the filing of the Portuguese Application,
it is convenient to consider the Fourth Preliminary Objection
before examining the Third.

In the Fourth Preliminary Objection, India contended that,
since it had no knowledge of the Portuguese Declaration before
Portugal filed its Application, it was unable to avail itself, on
the basis of reciprocity, of the Third Portuguese Condition and
to exclude from the jurisdiction of the Court the dispute which
is the subject-matter of the Portuguese Application. This Objection
is based on considerations substantially identical with those
adduced in support of the Second Preliminary Objection. Accord-
ingly, the Court will confine itself to recalling what it has already
said in dealing with the Second Preliminary Objection, in particular
that the Statute does not prescribe any interval between the
deposit by a State of its Declaration of Acceptance and the filing
of an Application by that State, and that the principle of reciprocity
is not affected by any delay in the receipt of copies of the Decla-
ration by the Parties to the Statute.

As the manner of the filing of the Portuguese Application did
not in respect of the Third Portuguese Condition deprive India

26
148 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

of any right of reciprocity under Article 36 of the Statute, so
as to constitute an abuse of the Optional Clause, the Court cannot
regard the Fourth Preliminary Objection of the Government of
India as well founded.

Third Preliminary Objection

In its Third Preliminary Objection, as defined in the Submis-
sions, the Government of India contended that, as the Portuguese
Application of December 22nd, 1955, was filed before the Por-
tuguese claim was effectively made the subject of diplomatic
negotiations, the subject-matter of the claim had not yet been
determined and that there was therefore, as yet, no legal and
justiciable dispute between the Parties which could be referred
to the Court under the Optional Clause. It was therefore submitted
that, as the conditions necessary to entitle the Government of
Portugal to invoke the Optional Clause did not exist at the time
of the Application, the Court is without jurisdiction to entertain
the Application.

In particular, the Third Objection is based on the allegation
that, although neither Article 36 (2) of the Statute nor the Por-
tuguese or Indian Declarations of Acceptance refer directly to
the requirement of previous negotiations, the fact that the Appli-
cation was filed prior to the exhaustion of diplomatic negotiations
was contrary to Article 36(2) of the Statute, which refers to
legal disputes. It was contended by India that, unless negotiations
had taken place which had resulted in a definition of the dispute
between the Parties as a legal dispute, there was no dispute, in
the sense of Article 36 (2) of the Statute, the existence of which
had been established in the Application and with respect to which
the Court could exercise jurisdiction.

In examining this Objection, the Court must consider the
question of the extent to which, prior to the filing of the Application
by Portugal, negotiations had taken place between the Parties in
the matter of the right of passage. An examination of these
negotiations shows that, although they cover various aspects of
the situation arising out of the political claims of India in respect
of the enclaves, a substantial part of these exchanges of views
was devoted, directly or indirectly, to the question of access to
the enclaves. A survey of the correspondence and Notes laid
before the Court reveals that the alleged denial of the facilities
of transit to the enclaves provided the subject-matter of repeated
complaints on the part of Portugal; that these complaints consti-
tuted one of the principal objects of such exchanges of views as
took place; that, although the exchanges between the Parties
had not assumed the character of a controversy as to the nature

27
149 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

and extent of the legal right of passage, Portugal described the
denial of passage requested by it as being inconsistent not only
with requirements of good neighbourly relations but also with
established custom and international law in general; and that
these complaints were unsuccessful.

While the diplomatic exchanges which took place between the
two Governments disclose the existence of a dispute between
them on the principal legal issue which is now before the Court,
namely, the question of the right of passage, an examination of
the correspondence shows that the negotiations had reached a
deadlock.

It would therefore appear that assuming that there is substance
in the contention that Article 36 (2) of the Statute, by referring
to legal disputes, establishes as a condition of the jurisdiction
of the Court a requisite definition of the dispute through nego-
tiations, the condition was complied with to the extent permitted
bv the circumstances of the case.

The Court finds that the legal issue was sufficiently disclosed
in the diplomatic exchanges, and considers that the Government
of Portugal has complied with the conditions of the Court’s.
jurisdiction as laid down in Article 36 (2) of the Statute. Accord-
ingly, the Court must dismiss the Third Preliminary Objection.

%

Fifth Prelininary Objection

In its Fifth Preliminary Objecticn the Government of India
has relied on the reservation which forms part of its Declaration
of Acceptance of February 28th, 1940, and which excludes from
the jurisdiction of the Court disputes with regard to questions
which by international law fall exclusively within the jurisdiction
of the Government of India. In particular, it was asserted by the
Government of India that the facts and the legal considerations.
adduced before the Court did not permit the conclusion that
there was a reasonably arguable case for the contention that the
subject-matter of the dispute is outside the exclusive domestic
jurisdiction of India. It was therefore submitted that the dispute
1s outside the jurisdiction of the Court.

The relevant Submissions of the Government of India filed on
September 27th, 1957, are based largely on the following assertions:
in paragraph (a) of its Submissions on the Fifth Objection it is
asserted that ‘‘the Portuguese claim to a right of transit ... cannot
be regarded as a reasonably arguable cause of action under inter-
national Jaw unless it is based on the express grant or specific
consent of the territorial sovereign’’, and that ‘‘the facts presented
to the Court in the Pleadings ot the Parties show no such express
grant or specific consent of the territorial sovereign as could place

28
150 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

a limitation on the exercise vf India’s jurisdiction...”. In para-
graph (6) it is asserted that none of the grounds put forward by
the Government of Portugal, namely, treaty, custom and general
principles of law, can be regarded on the facts and the law which
have been presented to the Court as reasonably arguable under
international law. Paragraph (c) deals exclusively with factual
aspects of the matter before the Court. India urges that the Fifth
Preliminary Objection must be sustained for the reason that
“regardless of the correctness or otherwise of the conclusions set
out in paragraphs 4 fa) and 4 {b), the uncontradicted facts presented
in the Pleadings of the Parties establish that the question of
transit between Daman and the enclaves has always been dealt
with both by Portugal and the territorial sovereign on the basis
that it is a question within the exclusive competence of the terri-
torial sovereign’’. Finally, in paragraph fd) it is urged that the
dispute submitted to the Court by Portugal is not a legal dispute
which may be decided by the Court under Article 35, paragraph 1,
of the Statute.

The facts on which those Submissions of the Government of
India are based are not admitted by Portugal. The elucidation
of those facts, and their legal consequences, involves an examination
of the actual practice of the British, Indian and Portuguese
authorities in the matter of the right of passage--in particular
as to the extent to which that practice can be interpreted, and
was interpreted by the Parties, as signifying that the right of
passage is a question which according to international law is
exclusively within the domestic jurisdiction of the territorial
sovereign. There is the further question as to the legal significance
of the practice followed by the British and Portuguese authorities,
namely, whether that practice was expressive of the common
agreement of the Parties as to the exclusiveness of the rights of
domestic jurisdiction or whether it provided a basis for a resulting
legal right in favour of Portugal. There is, again, the question
of the legal effect and of the circumstances surrounding the
application of Article 17 of the Treaty of 1779 and of the Mahratha
Decrees issued in pursuance thereof.

Having regard to ali these and similar questions, it is not possible
to pronounce upon the Fifth Preliminary Objection at this stage
without prejudging the merits. Accordingly, the Court decides to
join that Objection to the merits.

In these circumstances, it is not necessary for the Court to
examine the other questions relating to the Fifth Objection which
have been raised by the Parties in their Submissions.

29
151 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

*
* *

Sixth Preliminary Objection

In its Sixth Objection the Government of India contended that
the Court is without jurisdiction on the ground that India’s
Declaration of February 28th, 1949, accepting the compulsory
jurisdiction of the Court is limited to ‘‘disputes arising after
February 5th, 1930, with regard to situations or facts subsequent
to the same date”. In particular, the Government of India
maintained: fa) that the dispute submitted to the Court by
Portugal is a dispute which did not arise after February 5th,
1930, and /b) that in any case it is a dispute with regard to situa-
tions ‘and facts prior to that date.

The Court must examine the relevant Indian reservation, in
the first instance, in so far as it refers to the date on which the
dispute may be said to have arisen. The first contention advanced
in this connection by the Government of India is that the dispute
submitted to the Court did not arise after February 5th, 1930,
but—partly or wholly-—before that date. However, the Govern-
ment of Portugal contends that the dispute submitted to the
Court arose after 1953, when the Government of India adopted
certain measures relating to passage and transit between the
littoral territory of Daman and the enclaves of Dadra and Nagar-
Aveli.

That divergence of views cannot be separated from the question
whether or not the dispute submitted to the Court is only a
continuation of a dispute which divided Portugal and the territorial
sovereign prior to 1930 concerning the right of passage. The Court,
having heard conflicting arguments regarding the nature of the
passage formerly exercised, is not in a position to determine
at this stage the date on which the dispute arose or whether or
not the dispute constitutes an extension of a prior dispute.

Similar considerations apply to the second element of the reser-
vation vatione temporis which forms part of the Indian Declaration
of Acceptance, namely, in so far as it refers to ‘‘situations or facts”
subsequent to 5th February, 1936.

It was contended that the question of the existence or non-existence
of a legal right of passage was not, prior to 1930, in controversy
between the Parties concerned and that they managed throughout
. to settle, without raising or resolving the question of legal right,
the practical problems arising in this connection. On the other
hand it was also contended that the dispute now before the Court
is a continuation of a conflict of views going as far as 1815, and
that it is a dispute ‘beyond any question with reference to situa-
tions or facts stretching far back before 1930”.

30
I52 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

The Court is not at present in possession of sufficient evidence
to enable it to pronounce on these questions. To do that would
necessitate an examination and clarification of, often complicated,
questions of fact bearing on the practice pursued by the authorities
concerned for a period of very considerable duration and stretching
back to 1818, or even 1770. There are other factors which give rise
to similar considerations. These factors include the disputed inter-
pretation of the Treaty of 1779 between the Mahrathas and the
Portuguese. Any evaluation of these factors, although limited to
the purposes of the Sixth Preliminary Objection, would entail the
risk of prejudging some of the issues closely connected with the
merits. Accordingly, the Court must join the Sixth Preliminary
Objection to the merits.

*
* *

The Government of Portugal added to its Submissions a state-
ment requesting the Court to recall to the Parties the universally
admitted principle that they should facilitate the accomplishment
of the task of the Court by abstaining from any measure capable
of exercising a prejudicial effect in regard to the execution of its
decisions or which might bring about either an aggravation or an
extension of the dispute. The Government of Portugal has expressly
disclaimed any intention of invoking the provisions of Article 41
of the Statute concerning the indication of interim measures. The
Court does not consider that, in the circumstances of the present
case, it should comply with the request of the Government of
Portugal.

For these reasons,

THE CouRT,
by fourteen votes to three,
rejects the First Preliminary Objection;
by fourteen votes to three,
rejects the Second Preliminary Objection;
by sixteen votes to one,
rejects the Third Preliminary Objection;
by fifteen votes to two,
rejects the Fourth Preliminary Objection ;
by thirteen votes to four,
joins the Fifth Preliminary Objection to the merits;
by fifteen votes to two,
joins the Sixth Preliminary Objection to the merits;
31
153 RIGHT OF PASSAGE (PRELIM. OBJECTIONS) (JUDGM. 26 XI 57)

resumes the proceedings on the merits;
and fixes the following time-limits for the rest of the procedure:

for the filing of the Counter-Memorial of the Government of
India, February 25th, 1958;

for the filing of the Reply of the Government of Portugal,
May 25th, 1958;

for the filing of the Rejoinder of the Government of India,
July 25th, 1958.

Done in English and French, the English text being authorita-
tive, at the Peace Palace, The Hague, this twenty-sixth day of
November, one thousand nine hundred and fifty-seven, 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 Government of the Republic of India, respectively.

(Signed) GREEN H. HACKWORTH,
President.

(Signed) J. LovEz OLtvan,
Registrar.

Judge KoJEVNIKoV states that he cannot concur either in the
operative clause or in the reasoning of the Judgment because, in
his opinion, the Court should at the present stage of the proceedings
hold that it is without jurisdiction on one or indeed more of the
Preliminary Objections raised by the Government of India.

Vice-President BapAwI, availing himself of the right conferred
upon him by Article 57 of the Statute, appends to the Judgment
of the Court a statement of his dissenting opinion.

Judge KLAESTAD, availing himself of the right conferred upon
him by Article 57 of the Statute, appends to the Judgment of the
Court a statement of his dissenting opinion, in which M. FERNANDES,
Judge ad hoc, concurs.

Mr. CHAGLA, Judge ad hoc, availing himself of the right conferred
upon him by Article 57 of the Statute, appends to the Judgment
of the Court a statement of his dissenting opinion.

(Initialled) G. H. H.
(Initialled) J. L. O.
32


76

SEPARATE OPINION OF Mr. HUDSON.

I.

This appeal from the judgments given by the Hungarian-
Yugoslav Mixed Arbitral Tribunal in cases Nos. 749, 750 and 747
is brought before the Court under Article X of Agreement No, II,
signed at Paris on April 28th, 1930. The Agent of the Yugoslav
Government has raised a preliminary objection to the Court’s
entertaining the appeal. This requires, first of all, an interpreta-
tion of the provisions of Article X. The text consists of
French and English versions which read as follows :

« Article X. — Pour toutes les sentences de compétence ou
de fond rendues désormais par les tribunaux arbitraux mixtes
dans tous les procès autres que ceux visés par l’article premier
du présent Accord, la Roumanie, la Tchécoslovaquie et la
Yougoslavie, d’une part, et la Hongrie, d’autre part, convien-
nent de reconnaître à la Cour permanente de Justice internatio-
nale, sans qu’il y ait besoin de compromis spécial, compétence
comme instance d’appel.

Le droit d’appel pourra étre exercé par voie de requéte par
chacun des deux Gouvernements entre lesquels se trouve consti-
tué le Tribunal arbitral mixte, dans un délai de trois mois à
dater de la notification faite 4 son agent de la sentence dudit
tribunal. »

“Article X.—Czechoslovakia, Yugoslavia and Roumania, of
the one part, and Hungary, of the other part, agree to recog-
nize, without any special agreement, a right of appeal to the
Permanent Court of International Justice from all judgments
on questions of jurisdiction or merits which may be given
henceforth by the Mixed Arbitral Tribunals in all proceedings
other than those referred to in Article I of the present Agree-
ment.

The right of appeal may be exercised by written application
by either of the two Governments between which the Mixed
Arbitral Tribunal is constituted, within three months from the’
notification to its Agent of the "judgment of the said Tribunal.”

An interpretation of this text involves, necessarily, some
consideration of all the Paris Agreements, in the course of
which the Court must take account of their history and of
both the general and the specific purposes which they were
designed to serve. After negotiations in which seventeen Gov-
ernments took part, first at The Hague and later at Paris,
four Agreements and a covering ““Preamble’’ were signed at Paris

50
A./B. 68 (PAJZS, CSAKY, ESTERHAZY CASE).—OP. HUDSON 77

on April 28th, 1930, and brought into force on April 9th, 1931.
Agreement No. I effected certain ‘‘arrangements between Hungary
and the Creditor Powers” with respect to reparations ; Agree-
ment No. II dealt with certain questions relating to the Agrarian
Reforms of Czechoslovakia, Roumania and Yugoslavia, and
with the continued functioning of the Mixed Arbitral Tribunals
set up under the Treaty of Trianon of June 4th, 1920; Agree-
ment No. III dealt with “the organization and working of an
Agrarian Fund entitled ‘Fund A’”’; and Agreement No. IV,
which was signed by only a limited number of Governments
{not including that of Hungary), dealt with the “constitution
of a special fund entitled ‘Fund B’”. In so far as these
Agreements dealt with questions relating to agrarian reform,
they were designed to afford escape from the difficulties which
over a period of several years had paralyzed the Mixed Arbitral
Tribunals ; these difficulties had been the subject of protracted
consideration by the Council of the League of Nations, and
in consequence they had come to interest a wider group of
States than those immediately concerned.

While an interpretation of these Agreements must be approached
with a disposition to give effect to their general purpose, the
fact cannot be ignored that Agreement No. II, especially,
-embodied a transaction between Czechoslovakia, Roumania and
Yugoslavia on the one hand and Hungary on the other hand.
The special limits of that transaction must be respected. This
is made the more imperative because of the fact that Agree-
ment No. II constitutes a departure from Article 250 of the
Treaty of Trianon which had re-established the common inter-
national law, and because of the carefully guarded language
employed by the parties. It is commanded, also, by the
provisions of the preamble to Agreement No. II. The three
Governments of the States of the Little Entente entered into
the Agreement ‘“‘in a spirit of conciliation”, expressly reserving
“their legal points of view’. “On its side”, the Hungarian
Government expressed ‘‘the same desire for conciliation”, and
it maintained, ‘‘from the legal point of view’, the “position which
it had previously adopted’. On both sides, the Governments
expressly refused to surrender the rights derived by their
nationals from the Treaty of Trianon “in respect of any questions
the settlement of which is not envisaged’? in Agreement No. IT.

Article X of Agreement No. II sets two principal conditions
for the “right of appeal’ to this Court, ie., for this Court’s
“compétence comme instance d'appel” ; (I) the judgments appealed
from must be “judgments on questions of jurisdiction or
merits” (Fr., sentences de compétence ou de fond); and (2) the
judgments appealed from must have been given by a Mixed

7 51
A./B. 68 (PAJZS, CSAKY, ESTERHAZY CASE).—OP. HUDSON 78

Arbitral Tribunal in “proceedings other than those referred to
in Article I’. Are these two conditions fulfilled in this case?

(x) “Jurisdiction or merits” is an expression quite commonly
employed in a global rather than a restrictive sense. In an
international instrument such as Agreement No. II, there is
no reason for giving it a technical as opposed to a general
meaning. It was obviously employed in Article X to embrace
rather than to exclude. In the same sense, it was employed
by M. Titulesco in his declaration concerning Article X, made
on behalf of the Czechoslovak, Roumanian and Yugoslav Dele-
gations at the Paris Conference on April 28th, 1930. Hence
it seems quite immaterial that, formally, the judgments appealed
from were merely to the effect that the applications were not
receivable. Even if the distinction drawn by some systems of
national jurisprudence between questions of receivability and
questions of jurisdiction or merits may be said to have been
adopted by international jurisprudence—a point on which it
seems unnecessary to express an opinion—there ought to be
no doubt that the general language to be found in Article X
covers the judgments which are the subject of this appeal.
The first condition set by Article X was therefore fulfilled in
this case.

(2) Article X excepts from appeal judgments given in proceed-
ings ‘‘referred to in Article I’. What was the reason for this
exception? Quite obviously, it was because the proceedings
“referred to in Article I’? were made subject to a special
procedure, the purpose of which would in some measure be
defeated if appeal were allowed. Appeal was envisaged only
as to proceedings in which the normal judicial procedure was
applicable.

This becomes quite clear on an examination of the nature
of the special procedure prescribed for proceedings ‘referred to
in Article I’. It was to be an administrative rather than a
judicial procedure. Article VII restricts very narrowly the
legal field within which the Mixed Arbitral Tribunals are to
function in such proceedings: they are to frame their judg-
ments “solely upon the basis” of Agreement No. II; they have
no competence “‘to pronounce upon the differences on questions
of principle’ referred to in the preamble to Agreement No. IT;
and “‘in particular’ they have no competence “to interpret
Article 250 of the Treaty of Trianon” which had theretofore
served as the basis of claims by Hungarian nationals relating
to agrarian reform. Article VIII proceeds to enumerate the
precise questions to which the Mixed Arbitral Tribunals are to
address themselves, providing that they are to “‘ascertain’”’ two
questions of fact: (a) ‘whether the claimant is a Hungarian
national qualified by virtue of the Treaty of Trianon”, and

52
A./B. 68 (PAJZS, CSAKY, ESTERHAZY CASE).—OP. HUDSON 79

(b) “whether his property had been expropriated in application
of the agrarian legislation”. Thereafter, the Mixed Arbitral
Tribunals have only to fix the amount of compensation ‘‘to be
charged against the Fund’’, and this they are to do “by a
summary procedure” in accordance with methods ‘drawn up
in advance”. Taken together, Articles VII and VIII clearly
indicate an intention to place the “proceedings referred to in
Article I’? outside the field of normal judicial action, to remove
them from all contest on questions of principle, and to confine
them to the determination of bare questions of fact. The aim
was to expedite all these proceedings and to get them out of
the way. Hence Article X excepted them from the appeal
provided for. It must be concluded that the exception from
the “right of appeal’ applies only to those cases to which the
special procedure was made applicable.

In the three cases to which this appeal relates, the special
procedure was not applicable, and neither the applicants nor
Yugoslavia nor the Mixed Arbitral Tribunal sought to apply
it. The proceedings having been brought against Yugoslavia,
the Hungarian-Yugoslav Mixed Arbitral Tribunal made no
pretence of applying Article IIT of Agreement No. II, which
provides that “claims introducing legal proceedings” against
Yugoslavia “referred to in Article I, shall be treated hence-
forth as having been made against the Agrarian Fund’’; the
Agent of Yugoslavia appeared, not under Article XII of Agree-
ment No. II “for the purpose of furnishing information”, but
as the representative of the respondent State. Even if the failure
to substitute the Agrarian Fund for Yugoslavia as the respond-
ent was erroneous, however, it is to be noted that the applic-
ants sought indemnities, not on the basis of any provision
in Agreement No. II, but on the basis of Article 250 of the
Treaty of Trianon which, if the Tribunal had followed the
special procedure, it would have had no competence to interpret.
Moreover, it is significant that the parties before the Mixed
Arbitral Tribunal were permitted to conduct their written pro-
ceedings, not in accordance with the special Règlement of
August 4th, 1031 concerning agrarian cases, which envisaged
only the filing of an application and an answer, but in accord-
ance with the more general Réglement of August 4th, 1931,
which envisaged also the filing of a reply and a rejoinder.

The conclusion seems to be inescapable that as the special
procedure was not applicable to the cases to which this appeal
relates, the proceedings in these cases did not fall within the
exception in Article X. Hence the judgments appealed from
were given in ‘proceedings other than those referred to in
Article I’; and the appeal should be entertained.

53
A./B. 68 (PAJZS, CSAKY, ESTERHAZY CASE).—OP. HUDSON 80

I.

Entertaining the appeal, the Court should deal with the
opposing submissions of the Parties concerning the judgments
given by the Hungarian-Yugoslav Mixed Arbitral Tribunal in
cases Nos. 749, 750 and 747. The three judgments follow the
same general lines; in each of them the Mixed Arbitral
Tribunal based its conclusions on the same reasons as in the
others. Briefly, it was the view of the Tribunal that the
proceedings were “in regard to the agrarian reform” (Fr., à
propos de la réforme agraire); that Article I of Agreement
No. II covers all the proceedings brought by Hungarian
nationals against the States of the Little Entente “in regard
to the agrarian reform”; and that since the Paris Agreements
came into force no such proceeding can be based upon Article 250
of the Treaty of Trianon. The broad question before the
Court is whether this is a proper interpretation of the Paris
Agreements. In other words, the question before the Court is
whether within the meaning of the Paris Agreements the
expression “legal proceedings .... in regard to the agrarian
reforms” is as inclusive as the language employed would seem
to suggest, or whether on the contrary it has a more limited
purport. If so, the sense in which the expression is used in
the Agreements must result from the Agreements themselves.

Before dealing with this question, it is to be observed that
the Paris Agreements contain no indication of a general pur-
pose to deal with all possible claims “in regard to the agrarian
reform”. If this had been the desire of the negotiators at
The Hague and at Paris, apt terms could easily have been
found for effectuating such a purpose. There is a statement in
the preamble of Agreement No. IV that “by an agreement of
even date .... the questions relating to the agrarian reforms
have been settled” (in the Hague draft this was limited to the
“questions raised concerning agrarian reform’); but this is
immediately followed by a statement that “nevertheless there
remain outstanding .... important differences concerning the
application”, inter alia, of Article 250 of the Treaty of Trianon.
The guarded language in the Agreements, particularly in
Agreement No. II, is consistent only with the idea that the
Agreements were to serve a more limited purpose. An inter-
pretation urged upon the Court by the Agent of Yugoslavia
would: compel all Hungarian nationals who desire to receive an
indemnity for the expropriations effected in the course of the
agrarian reform to formulate claims against the Agrarian Fund
in proceedings before the Mixed Arbitral Tribunal. Such a dis-
placement of Article 250 of the Treaty of Trianon, which as

54
A./B. 68 (PAJZS, CSAKY, ESTERHAZY CASE).—OP. HUDSON 81

pointed out above restored the common international law,
would require clear and explicit provisions in the Agreements,
but such provisions are not to be found in the text. Nor
can that obligation of such Hungarian nationals be deduced
from the “lump-sum settlement” referred to in Article 10 of
Agreement No. III, for that settlement is limited to “‘claim-
ants within the terms of Article I of Agreement No. If”.

Article I of Agreement No. II refers throughout to “pro-
ceedings” or ‘‘legal proceedings”. In so far as they concern
Yugoslavia, the several paragraphs of Article I relate more
particularly to three categories of proceedings, all of which
are considered to be ‘‘in regard to the agrarian reform” : (a) pro-
ceedings brought prior to 2oth January 1930; (b) proceedings
instituted after zoth January 1930 on account of properties
which on that date were already subject to the agrarian reform
and as to which on that date the owner’s right of free disposal
has been limited; (c) proceedings instituted after 2oth January
1930 in respect of such properties “as a result of the applica-
tion of the new Yugoslav law’. This description does not
constitute a definition of the proceedings referred to in the
Article: it merely constitutes a limitation within the range of
the proceedings the definition of which must be sought else-
-where.

The definition of the proceedings dealt with is to be found
in the preamble of Agreement No. II, which expressly refers
(para. 2) to “legal proceedings” pending or to be initiated.
The context clearly shows that the proceedings thus referred
to are those which relate to ‘‘a certain number of claims based
on Article 250 of the Treaty of Trianon .... submitted by Hun-
garian nationals against the three Governments of Czechoslo-
vakia, Yugoslavia and Roumania as a result of the application
of the agrarian reforms in those countries” (para. I); the said
Governments declare that they do not “in any way recognize
the justice of the said claims” (para. 3).

What were the claims in question, and consequently the
“legal proceedings” referred to? On the 2oth January 1930
more than five hundred proceedings were pending before the
three Mixed Arbitral Tribunals, all of them of the same
general character. Basing themselves on Article 250 of the
Treaty of Trianon, the applicants attacked the legality of the
measures of agrarian reform applied to their properties, and
they sought either restitution or complete indemnities in lieu
of restitution. It would seem, then, that to the extent that
proceedings instituted after 20th January 1930 are referred to
in Article I of Agreement No. II, they must be proceedings of

55
A./B. 68 (PAJZS, CSAKY, ESTERHAZY CASE).—OP. HUDSON 82

the same general character. Not only is this conclusion con-
sistent with the general purpose which Agreement No. II was
designed to serve; it is also impelled by the language used
and by the general nature of the arrangement made for imper-
sonalizing agrarian claims.

The preamble of Agreement No. II refers in the first para-
graph to ‘‘a certain number” of pending claims and in the second
paragraph to “legal proceedings” (Fr., ces procés); it is then
added that ‘other proceedings may be instituted”’ (Fr., d’autres
pourraient être engagés). This is clearly an assimilation of later-
instituted to pending claims. Article IV of Agreement No. II
points to the same assimilation in providing that “the Fund
shall not be called upon to make any payment until it has
received notification of the whole of the judgments’. Arti-
cle VI has the same effect in providing that when the Man-
aging Commission of the Fund has “received the whole of the
judgments delivered in the legal proceedings referred to in
Article I’, it shall make a “proportional distribution” among -
judgment-holders ; and this is to be done “in any case before
31st December 1932”, whereas the ultimate date for the applic-
ation of the new Yugoslav law was fixed in Article I as
31st. December 1933. The outline of the special procedure
envisaged by Articles VIT and VIII for “the legal proceedings
referred to in Article I’’ carries further the idea of assimila-
tion. Moreover, the financial construction of the Agrarian
Fund set out in Agreement No. III shows that the negotiators
anticipated that for meeting the judgments given against it
in proceedings referred to in Article I of Agreement No. Il,
the Fund would have something more than the amounts paid
by the States of the Little Entente “‘on account of local indem-
nities’, that it would have, also, the amounts representing
the contributions of other States.

These various provisions of the Agreements indicate that
later-instituted proceedings were, like the proceedings brought
before 2oth January 1930, envisaged as proceedings in which
the applicants sought complete indemnities in lieu of restitu-
tion. Nor is this indication rebutted by the provisions of Arti-
cle 10 of Agreement No. III concerning a “lump-sum settle-
ment of the total indemnities”’ to be allotted by the new
Yugoslav law; the “lump-sum settlement” was only “for the
expropriated lands of present and future claimants within the
terms of Article I of Agreement No. II’, “whatever may be
the extent’? of those lands. Article 10 is entirely consistent
with the view that all the proceedings referred to in Article I
of Agreement No. II were envisaged as proceedings of the
same general character, ie., proceedings which attacked the

56
A./B. 68 (PAJZS, CSAKY, ESTERHAZY CASE).—OP. HUDSON 83

agrarian reform and sought complete indemnities as a substi-
tute for restitution. .

What has just been said suffcientiy explains the proper
interpretation of the expression “legal proceedings .... in regard
to the agrarian reforms”, as used in Agreement No. II and
more particularly in Article I of that Agreement.

Clearly, the proceedings before the Hungarian-Yugoslav Mixed
Arbitral Tribunal were not of that character. The Tribunal
itself drew no distinction between the three cases; in two of
them, if not in all of them, the expropriation was treated as a
fait accomph, the legality of which was not challenged, and
the applicants sought neither restitution nor complete indem-
nities in leu of restitution, but local indemnities on a footing
of equality with Yugoslav. nationals. In case No. 749 (Pajzs),
the applicants asked expressly que l'État yougoslave nous accorde
les indemnités .... dans la méme mesure et de la méme facon que
si nous éhions sujets yougoslaves. In case No. 750 (Csaky), the
applicant asked for le même dédommagement que celui qui lui
serait accordé si celte dernière était ressortissante yougoslave. If
case No. 747 (Esterhézy) is not so clear on this point, even ~
there the applicant claimed le droit dintenter un procès contre
l'Etat yougoslave pour violation des dispositions de l'article 250
du Traité de Trianon, vu que mon affaire n'est pas visée par
les Accords de Paris. All three of these proceedings were,
therefore, outside the categories of “proceedings referred to
in Article I’ of Agreement No. II.

The conclusion follows that the Mixed Arbitral Tribunal
erroneously envisaged these proceedings as being covered by
the provisions in Article I of Agreement No. IT, and that
since its judgments were based on this conclusion they should
be reformed. It is unnecessary for this opinion to deal more
particularly with the disposition of the appeal.

III.

The conclusion that the appeal should be entertained would
make it unnecessary for the Court to deal with the alternative
submission of the Hungarian Agent concerning the ‘‘difference
as to the interpretation or application” of Agreements Nos. II
and III.

Since the Court has decided that the appeal is not receiv-
able, however, and since it has decided in consequence to deal
with the “difference as to interpretation or application”, it may
be added in this opinion that, in line with reasons given above,

57
A./B. 68 (PAJZS, CSAKY, ESTERHAZY CASE).—OP. HUDSON 84

the undersigned cannot agree with the considerations which
have led the Court to decide that the attitude of Yugoslavia
in regard to the Hungarian nationals whose properties have
been expropriated in the course of the agrarian reform is in
conformity with the dispositions of the Paris Agreements.

(Signed) MANLEY O, Hupson.

58