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Portugal vs India

Facts:

1. 1954 - Portugal was not able to access between the enclaves of Dadra and Nagar Haveli
and territory of Damao, over which they had sovereignty.

2. 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.

3. After Portugal filed its memorial, India filed six preliminary objections which the Court
decided on November 1957.

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.

4) the first four objections were rejected by the Court while the last two where joined to the
merits.

Issue: Portugal's right of passage across Dadra and Nagar Haveli to communicate with the
other enclaves under its sovereignty

Sub-issue: with reference to what date must the Court ascertain whether the right invoked by
Portugal exists or does not exist ? Held: On the eve of the restrictions of India imposed in the
way of passage. That was the point when Portugal asked the Court for relief.

Sub-issue: whether or not the Court has jurisdiction over this case.

Held: In its 5th preliminary objection, India argued that this dispute is under their exclusive
jurisdiction. However, the Court said that in support of their claim of right of passage,
Portugal relied on the Treaty of 1779; the customary practice of India to allow private
persons to use the passage, which India contested; international custom and international
law. As these are involved, it cannot be said that the dispute only concerns domestic matters
but international ones over which the Court has jurisdiction.
The court also rejected the 6th objection. The subject matter of the dispute only materialized
when India placed the obstacles in the passageway in 1954. This was beyond February 5,
1930; hence the compulsory jurisdiction of the Court attached as India provided in its
condition.

Questions under the main issue:

(1) The existence in 1954 of a right of passage in Portugal's favour to the extent necessary for
the exercise of its sovereignty over the enclaves, exercise of that right being regulated and
controlled by India;

(2) Failure by India in 1954 to fulfil its obligation in regard to that right of passage;

(3) In the event of a finding of such failure, the remedy for the resulting unlawful situation.

Court 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.