Razon, Jesse Dario G.

Case Concerning Right of Passage over

Indian Territory (Merits)
Portugal v. India

ICJ Reports 12 April 1960

FACTS: In 1954, Portugal was not able to access between the enclaves of Dadra
and Nagar Haveli and territory of Damao, over which they had sovereignty.

On December 1955, Portugal filed an application before the Court, requesting it to

recognize and declare that Portugal was the holder or beneficiary of a right of
passage between these areas. This application stated that Portugal and India had
accepted the Optional Clause which forms the subject of Art 36, par 2, of the
Statute of the Court.

After Portugal filed its memorial, India filed six preliminary objections which the
Court decided on November 1957 such as:
a) The third condition of the Portuguese Declaration of Dec 19 1955, which
gives jurisdiction to this Court, is incompatible with the provisions of the
Optional clause. Hence, the declaration is not effective in establishing the the
compulsory jurisdiction of the court.
b) Following this, Portugal violated the principle of equality of States before
the Court when it filed its applicable before a copy of declaration of Portugal
accepting the compulsory jurisdiction of the Court could be given to other
Parties and Secretary General in accordance to the Statute.
c) Portugal did not have diplomatic negotiations with India prior to its filing
d) The subject of the dispute which, by intl law, falls under the exclusive
jurisdiction of India. This has bee
e) Since India did not receive the Declaration prior to the Application, it was
not able exercise its power to make reservations contained in the third
condition of the Declaration; hence, the Declaration was not able to
establish the compulsory jurisdiction of the Court.
e) That Portugal claimed that it had the right of passage since 1891; because of
that, the subject of the issue is not under the scope of India's acceptance of
compulsory jurisdiction which condition includes that subjects to the dispute
must refer only to situation or issue which arise after February 5, 1930.
The first four objections were rejected by the Court while the last two where joined
to the merits.

ISSUE: Whether or not the existence of a right of passage in Portugal's favor to the
extent necessary for the exercise of its sovereignty over the enclaves, exercise of
that right being regulated and controlled by India; the failure by India to fulfill its
obligation in regard to that right of passage and the remedy for the resulting
unlawful situation.

HELD: As to Portugal’s claim on their right based on their sovereignty over the
enclaves, the Court writes, “It therefore appears that the Treaty of 1779 and the
sanads of 1783 and 1785 were intended by the Marathas to effect in favour of the
Portuguese only a grant of a jagir or saranjam, and not to transfer sovereignty over
the villages to them. During the Maratha period sovereignty over the villages
comprised in the grant, as well as over the intervening territory between coastal
Daman and the villages, was vested in the Marathas. There could, therefore, be no
question of any enclave or of any right of passage for the purpose of exercising
sovereignty over enclaves. The fact that the Portuguese had access to the villages
for the purpose of collecting revenue and in pursuit of that purpose exercised such
authority as had been delegated to them by the Marathas cannot, in the view of the
Court, be equated to a right of passage for the exercise of sovereignty”
When Britain occupied India, however, it recognized the sovereignty of Portugal
over the enclaves. The right of passage of private persons and merchandise was
recognized also, but not of military men and ammunition. Britain and Portugal
entered into a treaty on December 26, 1878 and agreed that the armed forces of
each other should not enter the Indian dominion of the other, except in specified
cases or in case of formal request by another party. This agreement was carried
over when India regained its independence. But it had been reported that armed
men of the Portuguese Government oftentimes passed through without a formal
request. The need for a formal request before armed men and police of the
Portuguese Government could pass through had been repeated in subsequent
agreements (first in 1913, 1920 - only armed police of a certain rank can enter the
territory of the other party without consent. Then in 1940 as well). Arms and
ammunition - never allowed.
The Court considered this agreement between Britain or India Govt and Portugal
Govt as the source of agreement between the two parties and rendered it
unnecessary to decide if Portugal is correct in arguing that its source of the right of
passage was, in the absence of practice, general international custom or principles.