Right of Passage over Indian Territory, Portugal v India

Facts: Portugal held several small enclaves of territory within India; one on the coast but the others inland. Portugal claimed they had a Right of passage to its inland territories over Indian land which they alleged India had interfered with. Issues: Whether Portugal's claim of the right of passage through Indian territory was too vague and contradictory to enable the Court to pass judgment upon it under Article 38 (1) of the Statute of the International Court of Justice. Whether the right of passage of military personnel and arms should have the same right of passage over Indiana territory as that of private persons and goods. Reasons: India argued before the Court that practice between only two states was not sufficient to form a local custom. The Court rejected this reasoning, finding no reason why a century and a quarter of practice based on mutual rights and obligations was insufficient for local custom to arise. This local practice, thus, prevailed over any general rules. Ratio: Local customary law can exist as long as the elements in the North Sea Continental Shelf case are made out.

(Portugal v. India) 1957 I.C.J. Rep. 125, 1960 I.C.J. Rep. 6. The Portuguese district of Daman, in India, comprised Daman itself (on the coast) and two inland enclaves of Dadra and Nagar-Aveli. In July and August 1954, Portuguese authority in the two inland enclaves was overthrown; India imposed restrictions upon Portuguese passage to those enclaves, the lawfulness of which Portugal disputed. India having already accepted the compulsory jurisdiction of the I.C.J. by a declaration under art. 36(2) of the Court's Statute, Portugal made such a declaration on 19 December 1955, and on 22 December 1955 filed an application submitting the dispute to the Court. India raised six preliminary objections to the exercise of jurisdiction by the Court, which, on 26 November 1957, in rejecting four of India's objections and joining two to the merits, held that (a) (14 to 3) Portugal's reservation to its declaration permitting it at any time to exclude categories of disputes from the jurisdiction of the Court was not inconsistent with the Court's Statute; (b) (14 to 3) the filing by Portugal of an application three days after filing its declaration under art. 36(2) of the Statute was not inconsistent with the Statute; (c) (15 to 2) nor did it deprive India of any right of reciprocity under art. 36(2) so as to constitute an abuse of the Optional Clause; and (d) (16 to1) in the circumstances of the case, diplomatic negotiations had sufficiently disclosed the legal issue submitted to the Court.

In its judgment on the merits, on 12 April 1960, the Court held that (a) (13 to 2) as in the proceedings both parties had invoked arguments of international law, India's preliminary objection that its reservation in its optional clause declaration excluded disputes with regard to questions which by international law fell exclusively within the jurisdiction of India could not be upheld; (b) (11 to 4) as both the dispute and the situation of the enclaves which had given rise to Portugal's claim arose after 5February 1930, the dispute was not excluded from the Court's

jurisdiction by India's acceptance of its jurisdiction only for post-1930 disputes and situations or facts; (c) although, in their origins in the eighteenth century, Portugal's rights over the territories had been derived from instruments not intended to transfer sovereignty, when Great Britain became sovereign of that part of the country Portuguese sovereignty had been recognized by the British and had subsequently been tacitly recognized by India; also with regard to private persons, civil officials, and goods in general, there had existed a constant and uniform practice allowing free passage between Daman and the enclaves, which practice had been accepted as law by the parties; accordingly (11 to 4) Portugal had in 1954 a right of passage over intervening Indian territory between its enclaves to the extent necessary for the exercise of Portuguese sovereignty over the enclaves and subject to the regulation and control of India, in respect of private persons, civil officials, and goods in general; (d) but (8 to 7) Portugal did not have in 1954 any such right of passage in respect of armed forces, armed police, and arms and ammunition; and (e) India's refusal of passage through Indian territory where there was tension as a result of the events of July and August 1954 was covered by its power of regulation and control of Pakistan's right of passage; and therefore (9 to 6) India had not acted contrary to its obligations resulting from Portugal's right of passage in respect of private persons, civil officials, and goods in general.