ICFAI UNIVERSITY, DEHRADUN

ICFAI LAW SCHOOL

Final Draft

Subject: Public International Law

PROJECT REPORT

Portugal v India

1960 I.C.J. 6 (Apr. 12)

Submitted To:

Mr. Rupaksh Sharma

Assistant Professor (Law)
ICFAI Law School

Submitted By:

Abhinav Kumar Dewaliya

Enrollment no.- 17FLICDDN02003
Session – 2017-22
Year – 4th year
Course – BA.LLB(HONS.)

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 Acknowledgements

I, Abhinav Kumar Dewaliya, take extreme pleasure in expressing my profound gratitude towards
my Public International Law teacher Mr. Rupaksh Sharma(Assistant Professor, Law) for inspiring
me and giving me the invaluable guidance and constant support throughout the course of my project
work. I have taken efforts in thus kind project. However, it would not have been possible without the
kind support of my teacher, friends, colleagues and many more individual persons, writers, college
staffs, librarians and other sources of e-resource. I would like to sincere thanks to all of them.

I thank my parents for providing me everything whatever be required for the completion of this
project.

Finally, I would like to thanks all Kith & Kins who are a little bit part in helping me for this kind
project.

Abhinav Kumar Dewaliya

B.A. LL.B. (Hons.) - 7th Sem.

17FLICDDN02003

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Table of Content

S.NO. CONTENT PAGE NUMBER

01. Before the Bench of 04
02. Introduction 05
03. Fact of the Case 05
04. Issues of The Case 06
05. Arguments before ICJ 06
06. Judgment 08
07. Judgment Analysis 09
08. Bibliography 10

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 Before Hon’ble International Court of Justice

Portugal v Union of India

(Petitioner) (Respondent)

Equivalent Citations: 1960 I.C.J 6 (Apr. 12)

Date of Judgment: 12/April/1960

Before the Bench of Hon’ble:

 President: Klaestad
 Vice-President: Zafrulla Khan
 Judges: Basdevant, Hackworth, Winiarski, Badawi, Armand-Ugon, Kojevnikov, Moreno
 Quintana, Cordova, Wellington Koo, Spiropoulos, Sir Percy Spender
 Judges ad hoc: Chagla, Fernandes

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Introduction

The case in context of right of passage over Indian land in between Portugal and India was submitted
by solicitation of the Portuguese Government requesting and the Court to recognize and declare that
Portugal was the holder or beneficiary of right of passage between its territory of Damao (littoral
Damao) and its enclaves of Dadra and Nagar Haveli, and also between each of the latter and that this
right embraces with the faculty of transit for persons and goods, including armed forces, without
restrictions or difficulties and in the manner and to the extent required by the effective exercise of
Portuguese sovereignty within the said territories, that India has prevented and continues to stop the
exercise of the proper in question, thus constraining an offence to the damage of the sovereignty of
Portuguese over the enclaves and violating its global obligations and to adjudicate that India should
put an instantaneous end to the present situation by allowing Portugal to exercise the proper of
passage thus claimed. The Application expressly referred under Article 36, paragraph 2 of the Statute
of International Court of Justice and to the declarations by which Portugal and India have accepted
the compulsory jurisdiction of the Court. Its judgment the Court referred to the submissions filed by
Portugal which is in the first place demanded the Court to adjudge and announce that a right of
passage was obsessed by Portugal and must be respected by India, this right was besought by Portugal
only to the extent necessary for the exercise of its sovereignty over the enclaves, and it was not
opposed that passage was accompanied by any immunity and made clear that such passage remained
subject to the regulation and control of India, which must be exercised in good faith, India being
under an obligation not to prevent the transit compulsory for the exercise of Portuguese sovereignty.
The Court then considered the date with reference to which it must ascertain whether the right
invoked existed or didn’t exist. The question as to the existence of a right of passage having been put
to the Court in respect of the dispute which had arisen with regard to hindrances placed by India in
the way of passage, it was the eve of the formation of those obstacles that must be selected as the
viewpoint from which to certain whether or not such aright existed, the selection of that date and time
would leave open the arguments of India regarding consequent lapse of the right of passage. The
Government of India for its part raised six Preliminary Objections to the jurisdiction of the Court
which were supported the subsequent grounds. The First Preliminary Demurral was to the effect that a
condition in the Portuguese Declaration of December 19th, 1955 as accepting the jurisdiction of the
court for that government "the right to exclude from the scope of this Declaration at any time during
its legitimacy any given category or categories of disputes by notifying the Secretary General of the
United Nations and also with effect from the zeal moment of such announcement" and was unsuited
with the objective and determination of the Optional Clause, with the result that the Declaration of
Acceptance was illegal and invalid as well. The Second Preliminary Objection was based on the
allegation and challenges that the Portugal Application of December 22nd, 1955 was filed before a
copy of the Declaration of Portugal accepting the compulsory jurisdiction of the Court could be
transmitted to other parties to the Statute by the Secretary General in acquiescence with Article 36,
paragraph 4, of the Statute under the International Court of Justice.1

Fact of the Case:

Portugal had held different small enclaves of territory in India, one on the coast but the others in land.
Portugal claimed that they had a Right of passage to its inland territories over Indian terrestrial land
which they alleged India had impeded with. India argued before the Court of law that practice in
1
Gurdip Singh, International Law (3rd ed. Eastern Book Company 2015)
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between only two states was not sufficient to form a local custom but the Court rejected this
perceptive, finding no reason why a century and a quarter of practice based on mutual rights,
liabilities and obligations was insufficient for local custom to arise on. This local practice, thus
succeeded over some general set of rules. Local customary rules can exist as long as the elements in
the North Sea Continental Shelf case can be.2

Issue of the Case:

 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?

Arguments before International Court of Justice:

The Indian Government firstly argued that the dispute submitted to the Court of law by Portugal
didn’t arise after February 5th, 1930 and so, it was a dispute with reference to the circumstances and
facts prior to that date and time as well. The Portugal Government had added to its compliances a
statement requesting to the court to recall the parties, the universally admitted principle that they
should felicitate the achievement of the task of the court by abstackle from any measure capable of
exercising any prejudicial change in regard to the execution of its decision or which might bring about
either an aggravation or an extension of the dispute. The Court didn't consider that within the
circumstances of this case it should suits this request of the govt of Portugal. In its Judgment, the
Court rejected the primary and therefore the Second Preliminary Objections by fourteen votes to 3 ,
the Third by sixteen votes to at least one and therefore the Fourth by fifteen votes to two. By thirteen
votes to four it joined the Fifth Objection to the merits and by fifteen votes to 2 joined the Sixth
Objection to the merits. Finally, it declared that the proceedings on the merits were resumed and
glued as follows the time-limits for the remainder of the proceedings: For the filing of the Counter-
Memorial of India, February 25th, 1958 for the filing of the Portuguese Reply, May 25th 1958 for the
filing of the Indian Rejoinder, July 25th, 1958.

India had contended within the first place that the proper of passage claimed by Portugal was too
vague and contradictory to enable the Court to pass judgment upon it by the application of the legal
rules enumerated in Article 38 (1) of the Statute. There was little question that the day-to-day exercise
2
http://www.icj-cij.org/docket/files/32/4543.pdf
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of the proper might produce to delicate questions of application but that wasn't within the view of the
Court, sufficient ground for holding that the proper wasn't susceptible of judicial determination.

Portugal had relied on the Treaty of Poona of 1779 and on sanads (decrees) issued by the Maratha
ruler in 1783 and 1785, as having conferred on Portugal sovereignty over the enclaves with the proper
of passage to them; India had objected that what was imagined to be the Treaty of 1779 wasn't validly
entered into and never became in law a treaty binding upon the Marathas. The Court, however, found
that the Marathas didn't at any time cast any doubt upon the validity or binding character of the
Treaty. India had further contended that the Treaty and therefore the two sanads didn’t operate to
transfer sovereignty over the assigned villages to Portugal but only conferred, with reference to the
villages, a revenue grant. The Court was unable to conclude from an examination of the varied texts
of the Treaty of 1779 that the language employed therein was intended to transfer sovereignty; the
expressions utilized in the 2 sanads, on the opposite hand, established that what was granted to the
Portuguese was only are venue tenure called a jagir or saranjam and not a single instance had been
delivered to the notice of the Court during which such a grant had been construed as amounting to a
cession of sovereignty. There could, therefore, be no doubt of any enclave or of any right of passage
for the aim of exercising sovereignty over enclaves.3

Judge Kojevnikov stated that he couldn't concur either within the operative clause or within the
reasoning of the Judgment because, in his opinion, the Court should, at this stage of the proceedings,
have sustained one or indeed more of the Preliminary Objections. Vice-President Badawi and Judge
Klaestad appended to the Judgment statements of their dissenting opinions. M. Fernandes, Judge
unplanned , concurred within the opinion of Judge Klaestad and Mr. Chagla, Judge unplanned ,
appended to the Judgment a press release of his opinion . With reference to the primary Preliminary
Objection to the effect that the Portuguese Declaration was invalid for the rationale that the condition
enabling Portugal to exclude at any time from the scope of that Declaration any given categories of
disputes by mere notification to the Secretary-General, the Court said that the words utilized in the
condition, construed in their ordinary sense, meant simply that a notification thereunder condition
applied only to disputes brought before the Court after the date of the notification. No retroactive
effect could thus be imputed to such a notification. In this connection the Court mentioned the
principle which it had laid down within the Nottebohm case within the following words: "An extrinsic
fact like the lapse of the Declaration by reason of the expiry of the amount or of denunciation cannot
deprive the Court of the jurisdiction already established." The Court added that this principle applied

3
http://www.icj-cij.org/docket/files/32/4521.pdf
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both to total denunciation, and to partial denunciation as contemplated within the impugned condition
of the Portuguese Declaration. India having contended that this condition had introduced into the
Declaration al degree of uncertainty on reciprocal rights and obligations which deprived the
Acceptance of the compulsory jurisdiction of the Court of all practical value, the Court held that as
declarations and their alterations made under Article 36 of the Statute had to be deposited with the
Secretary-General it followed that, when a case was submitted to the Court, it had been always
possible to determine what were, at that moment, the reciprocal obligations of the Parties in
accordance with their respective Declarations. Although it had been true that in the interval between
the date of the notification to the Secretary-General and its receipt by the Parties to the Statute there
might exist some element of uncertainty, such uncertainty was inherent within the operation of the
system of the Optional Clause and didn't affect the validity of the condition contained within the
Portuguese.

The Court noted that the facts on which the Submissions of India were based weren't admitted by
Portugal which elucidation of these facts and their legal consequences would involve an examination
of the practice of British . Indian and Portuguese authorities within the matter of the proper of
passage, especially to work out whether this practice showed that the Parties had envisaged this right
as a question which consistent with law of nations was exclusively within the jurisdiction of the
territorial sovereign. All these and similar questions couldn't be examined at this preliminary stage
without prejudging the merits. Accordingly, the Court decided to hitch the Fifth Objection to the
merits. Finally, in handling the Sixth Objection supported the reservation ratione temporis within the
Indian Declaration limiting the Declaration to disputes arising after February 5th, 1930, with regard to
the situations or facts subsequent to that date, the Court noted that to ascertain the date on which the
dispute had arisen it was necessary to examine whether or not the dispute was only a continuation of a
dispute on the proper of passage which had arisen before 1930. The Court having heard conflicting
arguments regarding the character of the passage formerly exercised wasn't during a position to work
out these two questions at this stage. Nor did the court have at present sufficient evidence to enable it
to pronounce on the question whether the dispute concerned situation or facts prior to 1930.
Accordingly, it joined the Sixth Preliminary Objection to the merits.4

Judgment by Hon’ble International Court of Justice:

4
Case concerning right of passage over Indian territory(Mar. 9, 2017, 11:20 p.m.),
http://www.icj-cij.org/docket/files/32/4521.pdf
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The International Court of Justice therefore concludes that, with regard to private individuals, civil
officials and goods or assets in general there existed during the British and post-British period, a
constant and uniform practice culture allowing free passage between Daman and the enclaves of this.
This practice having continued over a long period extending as beyond a century and a quarter non-
affected by the change of regime or time in regards to the intervening territory which occurred when
India became independent, the Court is in opinion of all the circumstances and situations of the case
as it may be, satisfied that practice was accepted as law by the parties and has given rise to a right and
a correlative obligation in between them. The Court thus held that Portugal had in the year 1954, right
of passage over intervening Indian territory between coastal Daman and the enclaves and between the
enclaves, in respect of private individuals, civil officials and goods or assets in general, to the
paramount necessary, as may be claimed by Portugal, for the exercise of its sovereignty over the
enclaves as such and also subject to the regulation and control of India.

With reference to armed police, things was similar on that of the soldiers . The Anglo - Portuguese
Treaty of 1878 controls the passage of armed police on the idea of reciprocity. Paragraph 2 of Article
XVIII of The Anglo - Portuguese Treaty of 1878 made provision for the entry of the police authorities
of the parties into the terrains of the other party for certain specific purposes, the pursuit of criminals
and persons engaged in smuggling and other contraband practices on a reciprocal basis as may be
found thereon. The Court is then so of the opinion that there is no right of passage in favour of
Portugal involving a correlative obligation on India has been established in respect of armed forces,
armed police, arms as well as ammunition. The practice that was established there shows that, with
regard to these categories it was well understood that the passage could take place over only by
permission of the British authorities. This condition sustained during the post-British period. The
court is here dealing with a tangible case having special features. Generally, the lis or case as it may
be, goes back to a period when and transmits to a province in which the relations in between
neighboring States were not controlled by precisely articulated rules but were governed largely by
practice.

Judgment Analysis:

In view of the pressure arises, then prevailing in intervening Indian terrain or territory as well the
court is not able to hold that India's denial of passage to the proposed entrustment and its denial of
Visa to Portuguese citizens of European native and to the native of Indian-Portuguese in the
employment of the Portuguese Government was accomplished contrary to its onus resulting from

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Portugal's right of passage. Portugal's claim of a right of passage is subject to full gratitude and
workout of Indian autonomy over the intervening terrain and with none resistance in favour of
Portugal. The Court is of the opinion that India's refusal of passage in those cases was, within the
circumstances, covered by its power of regulation and control of the proper of passage of Portugal5

Bibliography:

Website:
 www.indiakanoon.com
 www.manupatrafast.com
 http://lawbriefs.in
 http://law.du.ac.in
 http://www.icj-cij.org
 https://www.scribd.com
 https://www.coursehero.com

Books/Journal:
 All India Reporter 1970 (Supreme Court)
 library.law.columbia.edu

5
http://law.du.ac.in/uploads/1/4/2/0/14207972/2term_17113_public_international_law_ii_2013.pdf
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