Right of Passage Over Indian Ocean
Right of Passage Over Indian Ocean
Right of Passage Over Indian Ocean
The case concerning Right of Passage over Indian Temtory (Portugal v. India) was referred to the Court by an Application filed on 22 December 1955. In that .Application, the
Government of Portugal stated that its temtc~ryin the Indian
Peninsula included two enclaves surrounded by the Temtory
of India, Dadra and Nagar-Aveli. It was i.n respect of the
communications between those enclaves and the coastal district of Daman, and between each other, that the question
arose of a right of passage in favour of F'ortugal through
Indian temtory and of a correlative obligation binding upon
India. The Application stated that in July 1!254 the Government of Indiaprevented Portugal from exercising that right of
passage and that Portugal was thus placed in a position in
which it became impossible for it to exercise its rights of sovereignty over the enclaves.
Following upon the Application, the Cou.rt was seised of
six preliminary objections raised by the Government of
India. By a Judgment given on 26 November 1957, the Court
rejected the first four objections and joined the fifth and sixth
objections to the Merits.
In its Judgment, the Court:
(a) rejected the Fifth Preliminary Objection by 13 votes
to 2;
(b) rejected the Sixth Preliminary Objection by 11 votes
to 4;
(c) found, by 1l votes to 4, that Portugid had in 1954 a
right of passage over interveningIndian territory between the
enclaves of Dadra and Nagar-Aveli and the c,oastaldistrict of
Daman and between these enclaves, to the e:xtent necessary
for the exercise of Portuguese sovereignty over the enclaves
and subject to the regulation and control of l:ndia, in respect
of private persons, civil officials and goods in general;
(6) found, by 8 votes to 7, that Portugal did not have in
1954 such a right of passage in respect of armed forces,
armed police and arms and ammunition;
(e) found, by 9 votes to 6, that India hati not acted contrary to its obligations resulting from Portugal's right of pasand goods in
sage in respect of private persons, civil ~ffici~als
general.
The President and Judges Basdevant, Badawi, Kojevnikov and Spiropoulosappended Declarations ,tothe Judgment
of the Court. Judge Wellington Koo appended a Separate
Opinion. Judges Winiarski and Badawi appended a Joint
Dissenting Opinion. Judges Armand-Ugon, Moreno Quintana and Sir Percy Spender, and Judges ad ~SocChagla and
Fernandes, appended Dissenting Opinions.
52
sion of the British cbr Indian authorities rendered it unnecessary for the Court to' determine whether or not, in the absence
of the practice that actually prevailed, general international
custom or general principles of law recognized by civilized
nations, which had. also been invoked by Portugal, could
have been relied upon by Portugal in support of its claim to a
right of passage in respect of these categories. The Court was
dealing with a conc:retecase having special features: historically the case went back to a period when, and related to a
region in which, thle relations between neighbouring States
were not regulated by precisely formulated rules but were
governed largely by practice: finding a practice clearly established between two ;States,which was accepted by the Parties
as governing the relations between them, the Court must
attribute decisive effect to that practice. The Court was,
therefore, of the view that no right of passage in favour of
Portugal involving al correlative obligation on India had been
established in respect of armed forces, armed police and
arms and ammunition.
Having found that Portugal had, in 1954,a right of passage
in respect of private persons, civil officials and goods in general, the Court lastly proceeded to consider whether India
had acted contrary to its obligation resulting from Portugal's
right of passage in respect of any of these categories. Portugal had not contended that India had acted contrary to that
obligation before Ju.ly 1954, but it complained that passage
was thereafter denied to Portuguese nationals of European
origin, to native Indian Portuguese in the employ of the Portuguese Government and to a delegation that the Governor of
Daman proposed, in July 1954, to send to Nagar-Aveli and
Dadra. The Court found that the events which had occurred
in Dadra on 21-22 July 1954 and which had resulted in the
overthrow of Portuguese authority in that enclave had created
tension in the surrolunding Indian district; having regard to
that tension, the Coi~rtwas of the view that India's refusal of
passage was covered by its power of regulation and control of
the right of passage d Portugal.
For these reasons, the Court reached the findings indicated
above.