26 November 1957

 

General List No. 32

 
     

international Court of Justice

     
 

Right of Passage over Indian Territory

 
     

Portugal

 

v. 

India

     
     
 

Judgment

 
     
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BEFORE: President: Hackworth;
Vice-President: Badavi;
Judges: Guerrero, Basdewant, Winiarski, Zoricic, Klaestad, Read, Armand-Ugon, Kojevnikov, Sir Muhammad Zafrulla Khan, sir Hersch Lauterpacht, Moreno Quintana, Cordova, Wellington Koo;
Judges ad hoc: Chagla, Fernandes
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1957.11.26_right_of_passage.htm
   
Citation: Right of Passage over Indian Territory, Portugal v. India, Judgment, 1957 I.C.J. 125 (Nov. 26)
   
Represented By: Portugal: Dr. Joao de Barros Ferreira da Fonseca, Ambassador of Portugal to the Netherlands, as Agent;
Professor Inocêncio Galvao Telles, Director of the Faculty of Law of Lisbon, Member of the Upper House, as Agent, Advocate and Counsel;
assisted by
M. Maurice Bourquin, Professor in the Faculty of Law of the University of Geneva and in the Graduate Institute of International Studies, as Advocate and Counsel;
M. Pierre Lalive d'Épinay, Professor in the Faculty of Law of the University of Geneva;
Dr. Henrique Martins de Carvalho, Counsellor for Overseas Affairs at the Ministry of Foreign Affairs;
Dr. Alexandre Lobato, Secretarv of the Centre for Overseas Historical Studies, as Expert Advisers;
Dr. Carlos Macieira ,Ary dos Santos, Secretary of the Embassy of Portugal at The Hague, as Secretary;

India: Shri B. K. Kapur, Ambassador of India to the Netherlands, as Agent;
assisted by
Shri M. C. Setalvad, Attorney-General of India;
The Right Hon. Sir Frank Soskice, Q.C., M.P.;
Professor C. H. M. Waldock, C.M.G., O.B.E., Q.C., Chichele Professor of Public International Law in the University of Oxford;
M. Paul Guggenheim, Professor of International Law in the Faculty of Law of the University of Geneva and of the Graduate Institute of International Studies;
Mr. J. G. Le Quesne, Member of the English Bar, as Counsel;
Shri J. M. Mukhi, Legal Adviser in the Ministry of External Affairs,
as Assistant Agent and Secretary.

 
     
 
 
     
 

[p.125]

The Court,

composed as above,

delivers the following Judgment:

On December 22nd, 1955, the Minister of Portugal to the Netherlands, acting on the instructions of his Government, filed on that date with the Registrar an Application signed by himself as the appointed Agent of the Portuguese Government and submitting to the Court a dispute between the Republic of Portugal and the Republic of India concerning the right of passage over Indian territory between the territory of Daman (littoral Daman) and the enclaved territories of Dadra and Nagar-Aveli as well as between each of the two last-mentioned territories.

In the Application, the Government of Portugal stated that the Court had jurisdiction in the dispute for the reason that both Portugal and India had accepted the Optional Clause which forms the subject of Article 36, paragraph 2, of the Statute of the Court. The Application was communicated to the Government of India in conformity with Article 40, paragraph 2, of the Statute, on the day on which it was filed. It was also notified under Article 40, paragraph 3, of the Statute to the other Members of the United Nations and to other non-member States entitled to appear before the Court.

By an Order of March 13th, 1956, the Court fixed June 15th, 1956, as the time-limit for the filing of the Memorial of the Government of the Republic of Portugal, and December 15th, 1956, as the time-limit for the filing of the Counter-Memorial of the Government of the Republic of India. In the same Order the Court reserved the rest of the procedure for further decision. The Memorial was filed within the prescribed time-limit. At the request of the Government of India, which had announced its intention to submit a Preliminary Objection to the jurisdiction of the Court, the time-limit for the filing of the Counter-Memorial, or of the Preliminary Objection, was extended, by an Order of November 27th, 1956, to April 15th, 1957. Within the new time-limit thus fixed, the Government of India filed a « Preliminary Objection» designed, on [p128] various grounds stated therein, to obtain a finding from the Court that it is without jurisdiction to entertain the Portuguese Application.

On April 16th, 1957, an Order, recording that the proceedings on the merits were suspended under Article 62, paragraph 3, of the Rules of Court, fixed a time-limit expiring on June 15th, 1957, for submission by the Government of Portugal of a written statement containing its Observations and Submissions on the Preliminary Objections. Subsequently, at the request of the Government of Portugal, the Court, by an Order of May 18th, 1957, extended that time-limit to August 15th, 1957. On that date, the written statement was filed and the case, in so far as the Preliminary Objections were concerned, was ready for hearing.

The Honorable Mahomed Ali Currim Chagla, Chief Justice of Bombay, and M. Manuel Fernandes, Director-General at the Ministry of Justice of Portugal and Member of the International Relations Section of the Upper House, were respectively chosen, in accordance with Article 31, paragraph 3, of the Statute, to sit as Judges ad hoc in the present case by the Government of India and the Government of Portugal.

Sittings were held on September 23rd, 24th, 25th, 26th, 27th and 30th and on October 1st, 2nd, 3rd, 5th, 7th, 8th, 10th and 11th, 1957 in the course of which the Court heard oral arguments and replies from Shri B. K. Kapur, Shri M. C. Setalvad, Professors Waldock and Guggenheim, and Sir Frank Soskice, on behalf of the Government of India, and from M. de Barros Ferreira da Fonseca, and Professors Galvao Telles and Maurice Bourquin, on behalf of the Government of Portugal.

In the course of the written and oral proceedings, the following Submissions were made by the Parties:

On behalf of the Government of Portugal, in the Application:

"May it please the Court,

(a) To recognize and declare that Portugal is the holder or beneficiary of a right of passage between its territory of Dam20 (littoral Damao) and its enclaved territories of Dadra and Nagar-Aveli, and between each of the latter, and that this right comprises the faculty of transit for persons and goods, including armed forces or other upholders of law and order, without restrictions or difficulties and in the manner and to the extent required by the effective exercise of Portuguese sovereignty in the said territories.

(b) To recognize and declare that India has prevented and continues to prevent the exercise of the right in question, thus committing an offence to the detriment of Portuguese sovereignty over the enclaves of Dadra and Nagar-Aveli and violating its international obligations deriving from the above-mentioned sources and from any others, particularly treaties, which may be applicable.

(c) To adjudge that India should put an immediate end to this de facto situation by allowing Portugal to exercise the above-[p129]mentioned right of passage iii the conditions herein set out."

On behalf of the same Government, in the Memorial:

"May it please the Court,

1. To adjudge and declare

(a) that Portugal has a right of passage through the territory of India in order to ensure communications between its territory of Daman (coastal Daman) and its enclaved territories of Dadra and Nagar-Aveli;

(b) that this right comprises the transit of persons and goods, as well as the passage of representatives of the authorities and of armed forces necessary to ensure the full exercise of Portuguese sovereignty in the territories in question.

2. To adjudge and declare:

(a) that the Government of India must respect that right; (6) that it must therefore abstain from any act capable of hampering or impeding its exercise;

(c) that neither may it allow such acts to be carried out on its territory;

3. To adjudge and declare that the Government of India has acted and continues to act contrary to the obligations recalled above;

4. To call upon the Government of India to put an end to this unlawful state of affairs."

On behalf of the Government of India, in the Preliminary Objections :

"The Government of India, accordingly, asks the Court to adjudge and declare that it is without jurisdiction to entertain the Portuguese Application, dated 22nd December, 1955, on one or more of the following grounds:

A. (1) The third condition of the Portuguese Declaration of 19th December, 1955, is incompatible with the provisions of the Optional Clause of the Statute of the Court so that the said Declaration is totally invalid as a recognition of the compulsory jurisdiction of the Court under that Clause; and, in consequence,

(2) The Portuguese Application of 22nd December, 1955, which is expressed to found the jurisdiction of the Court in the present case upon the said Declaration, was ineffective to establish the compulsory jurisdiction of the Court under the Optional Clause (paragraphs 25-34).

B. (1) The filing of the Application in the present case by the Portuguese Government on 22nd December, 1955, both violated the principle of equality of States before the Court, and disregarded the express condition of reciprocity contained in the Declaration of the Government of India, dated 28th February, 1940; and, in consequence, [p130]

(2) The Portuguese Application of 22nd December, 1955, was ineffective to establish the compulsory jurisdiction of the Court under the Optional Clause (paragraphs 35-44).

C. (1) Portugal, before filing her Application in the present case, did not comply with the rule of customary international law requiring her to undertake diplomatic negotiations and continue them to the point where it was no longer profitable to pursue them, because

(A) She filed her Application on 22nd December, 1955, without ever previously having given to India the slightest indication that she made any such claims to legal rights of passage as she has since formulated in the Memorial; and

(B) She filed her Application on und December, 1955, immediately after making her Declaration accepting the Optional Clause, and only shortly after becoming a Member of the United Nations without attempting to pursue her diplomatic negotiations with India in the new situation created by the change in the legal relations of the Parties brought about by these events; and, in consequence,

(2) When Portugal filed her Application in the present case on 22nd December, 1955, there was not any legal dispute between the Parties and, in addition, Portugal had not fulfilled an essential condition for the invoking of the Court's compulsory jurisdiction under the Optional Clause (paragraphs 45-50).

D. (1) The fling of the Application in the present case by the Portuguese Government on 22nd December, 1955, was a violation of the reciprocal right conferred upon India, both by the terms of the Optional Clause, and by the terms of India's Declaration, to exercise the power to make reservations contained in the third condition of the Portuguese Declaration, dated 19th December, 1955;

(2) The filing of the Application on 22nd December, 1955, having regard to the terms of the Portuguese third condition, \vas also an abuse of the Optional Clause and of the procedure of the Court; and, in consequence,

(3) For each and both of the above reasons the Portuguese Application of 22nd December, 1955, was ineffective to establish the compulsory jurisdiction of the Court under the Optional Clause (paragraphs 51-58).

E. (1) The dispute relates to a question which under international law is, in principle, a question falling exclusively within the jurisdiction of India (paragraphs 161-168).

(2) A summary view of the facts shows that each of the interested States has for a long time past treated the matters now in dispute as falling exclusively within the jurisdiction of the territorial sovereign and, in view of the principle in E (1) above, this suffices to establish conclusively that the present dispute is one relating to a question which, by international law, falls exclusively within the jurisdiction of India (paragraphs 156-159). [p131]

(3) A summary view of the facts shows that in the past Portugal has unequivocally recognized that the matters now in dispute relate to a question falling exclusively within the jurisdiction of the territorial sovereign and the recognition of this by Portugal suffices to establish conclusively that the present dispute is one relating to a question which by international law falls exclusively within the jurisdiction of India (paragraphs 158-159).

(4) Independently of the attitude of the Parties, a summary view of the relevant facts and applicable law shows that none of the legal grounds of claim based on treaties, custom or general principles of law, which are invoked by the Government of Portugal in the Memorial, justify the provisional conclusion that they are of real importance judicially for determining the legal position of the Parties with respect to the passage of Portuguese persons and goods between Daman and the enclaves, with the result that these legal grounds of claim do not afford any basis for holding that the present dispute is not one relating to a question which by international law falls exclusively within the jurisdiction of India (paragraphs 160-197).

(5) Having regard to the principle in E (1) above, the present dispute, for each of the several reasons given in E (z), E (3) and E (4) above, is a dispute relating to a question which by international law falls exclusively within the jurisdiction of India and, as such, is excepted from India's acceptance of compulsory jurisdiction under the Optional Clause by the express terms of her Declaration dated 28th February, 1940 (paragraphs I59-197).

F. (1) If, contrary to the contentions of the Government of India, Portugal establishes that she was asserting some claim to rights of passage between Daman and the enclaves during the period from 1891 to the filing of the Application in the present case, the facts show that this claim was disputed by the British/ Indian Government; and, in consequence,

(2) The dispute submitted to the Court in the Portuguese Application of 22nd December, 1955, is in that event a dispute with regard to a situation antecedent to 5th February, 1930, and, as such, is excluded ratione temporis from India's acceptance of compulsory jurisdiction by the express terms of her Declaration dated 28th February, 1940 (paragraphs 198-201)."

On behalf of the Government of Portugal, in its Observations and Submissions in regard to the Preliminary Objections of the Government of India, the following Submissions were stated:

"The Portuguese Government considers that it has shown that not one of the six Preliminary Objections advanced by the Government of India is justified.

Accordingly, it respectfully begs the Court to reject them and to invite the Government of India
to present its Submissions on the merits of the dispute."[p132]

On behalf of the Government of India at the sitting of September 27th, 1957:

"First Objection

The Portuguese Declaration of 19 December, 1955, by reason of the incompatibility of its third condition with the object and purpose of the Optional Clause of the Statute of the Court, is wholly invalid as a recognition of the compulsory jurisdiction of the Court under that Clause; and, as the Portuguese Application of 22 December, 1955, purports to found the jurisdiction of the Court only upon the said invalid Declaration, the Court is without jurisdiction to entertain that Application.

Second Objection

Since the Portuguese Application of 22 December, 1955, was filed before the lapse of such brief period as in the normal course of events would enable the Secretary-General of the United Nations, in compliance with Article 36, paragraph 4, of the Statute of the Court, to transmit copies of the Portuguese Declaration of 19 December, 1955, to other parties to the Statute, the filing of the said Application violated the equality, mutuality and reciprocity to which India was entitled under the Optional Clause and under the express condition of reciprocity contained in her Declaration of 28 February, 1940, and thus the conditions necessary to entitle the Government of Portugal to invoke the Optional Clause against India did not exist when the said Application was filed; and in consequence the Court is without jurisdiction to entertain the said Application.

Fourth Objection

Since the Portuguese Application of 22 December, 1955, was filed before the lapse of such brief period as in the normal course of events would enable the Secretary-General of the United Nations, in compliance with Article 36, paragraph 4, of the Statute of the Court, to transmit copies of the Portuguese Declaration of 19 December, 1955, to other parties to the Statute, the filing of the said Application violated the reciprocal right conferred upon India by the Optional Clause and by India's Declaration of 28 February, 1940, to invoke the third condition contained in the Portuguese Declaration of 19 December, 1955, equally and under the same conditions as Portugal; and thus the conditions necessary to entitle the Government of Portugal to invoke the Optional Clause against India did not exist when the said Application was filed and the filing of the said Application constituted an abuse both of the Optional Clause and of the process of the Court; and in consequence. the Court is without jurisdiction to entertain the said Application.

Third Objection

Since the Portuguese Application of 22 December, 1955, "as filed before the Portuguese claim of a right of passage for persons and goods across Indian territory had been made the subject of diplomatic negotiations, the subject-matter of the claim had[p133] not yet been determined and there was not yet any legal and justiciable dispute between the Parties which could be referred to the Court under the Optional Clause; and thus the conditions necessary to entitle the Government of Portugal to invoke the Optional Clause against India did not exist when the said Application was filed; and in consequence the Court is without jurisdiction to entertain the said Application.

Fifth Objection

Since the acceptance of compulsory jurisdiction of the Court for the categories of disputes listed in the Optional Clause does not include disputes with regard to questions which by international law fall exclusively within the jurisdiction of India and since also India's Declaration of 28 February, 1940, expressly excluded such disputes from the scope of her acceptance of compulsory jurisdiction under the Optional Clause; and since in principle the subject-matter of the present dispute, namely, the transit of persons and goods over Indian territory between Daman and the enclaves, relates to a question which by international law falls exclusively within the jurisdiction of India, it is for Portugal to show legal grounds of claim which would place a limitation on India's exercise of her exclusive jurisdiction with respect to the subject-matter of the dispute and which are reasonably arguable under international law;
and whereas:

(a) the authorities cited in paragraphs 163 to 10s of India's Preliminary Objection establish that the Portuguese claim to a right of transit, whether it is considered to be with or without immunity, cannot be regarded as a reasonably arguable cause of action under international law unless it is based on the express grant or specific consent of the territorial sovereign; and since the facts presented to the Court in the pleadings of the Parties show no such express grant or specific consent of the territorial sovereign as could place a limitation on the exercise of India's jurisdiction with respect to the subject-matter of the dispute, the Fifth Objection should forthwith be sustained;

and whereas, in the alternative:

(b) none of the grounds of claim put forward by the Portuguese Government in its Application and Memorial, namely, treaty, custom and general principles of law, can be regarded on the facts and the law which have been presented to the Court as reasonably arguable under international law, the Fifth Objection must for this reason also be sustained ;

and whereas, furthermore:

(c) regardless of the correctness or otherwise of the conclusions set out in paragraphs 4 (a) and 4 (b), the uncontradicted facts presented in the pleadings of the Parties establish that the[p134]
question of transit between Daman and the enclaves has always been dealt with both by Portugal and the territorial sovereign on the basis that it is a question within the exclusive competence of the territorial sovereign;
and whereas:

(d) both Portugal and India have accepted the compulsory jurisdiction of the Court only for legal disputes which may be decided by the Court under the provisions of Article 38, paragraph 1, of the Statute; and the dispute submitted to the Court by Portugal is not such a dispute and there has been no agreement between the Parties to submit the dispute to the Court under the provisions of Article 38, paragraph 2, of the Statute; in consequence, for this reason also, the Fifth Objection should be sustained.

Sixth Objection

Since India's Declaration of 28 February, 1940, limited her acceptance of the compulsory jurisdiction of the Court to disputes arising after 5 February, 1930, with regard to situations or facts subsequent to that date; and since the claim of Portugal to a right of transit between Daman and the enclaves is formulated in her Application and Memorial as a claim of right dated from a period much before j February, 1930; and since that claim, if it was ever made, has been persistently opposed by the territorial sovereign, the present dispute as submitted to the Court by Portugal is a dispute excluded from India's acceptance of compulsory jurisdiction under the Optional Clause by the express terms of the said limitation in India's Declaration of 28 February, 1940 ; and in consequence the Court is without jurisdiction to entertain the Portuguese Application of 22 December, 1955.''

On behalf of the Government of Portugal, at the sitting of October 3rd, 1957:

"1. On the First Preliminary Objections

Whereas the reservation in the Portuguese Declaration of December 19th, 1955, on which the Government of India relies in support of its contention that the said Declaration is wholly invalid as a recognition of the compulsory jurisdiction of the Court, in no way contravenes the requirements of the Statute of the Court and cannot therefore be regarded as invalid;

Whereas the invalidity of that reservation would not, in any event, involve the invalidity of the declaration itself;

Whereas the Application by which the Portuguese Government has referred the present dispute to the Court has therefore, in this respect. a valid foundation;

For these reasons,

May it please the Court

to dismiss the First Preliminary Objection of the Government of India.[p135]

II. On the Second Preliminary Objection

Whereas Declarations made in accordance with Article 36, paragraph 2, of the Statute enter into force at once and have the effect of making the jurisdiction of the Court compulsory as between States accepting the same obligation;

Whereas no special condition has to be satisfied for this purpose;

Whereas, in particular, it is not made a condition for the exercise of its rights by the declarant State, by the submission to the Court of a dispute by means of an Application, that its Declaration should have been brought to the knowledge of the State which is the other Party to the dispute;

And whereas it is likewise not made a condition that a certain period of time should have elapsed after the making of the Declaration;

For these reasons,

May it please the Court

to dismiss the Second Preliminary Objection of the Government of India.

III. On the Third Preliminary Objection

Whereas international law does not make the institution of proceedings by means of a unilateral Application dependent on the prior exhaustion of diplomatic negotiations, in the absence of a treaty-provision stipulating such a condition;

Whereas no provision of this kind' exists in the present case, and whereas the Portuguese Government was therefore under no obligation to pursue diplomatic negotiations with the Government of India up to the point at which they became futile;

Whereas it is, in any event, for the Government of India to prove the insufficiency of these negotiations, and whereas it not only has failed to adduce such proof but proof to the contrary is contained in the documents;

Whereas these negotiations made clear beyond question the existence of a dispute between the Parties;

Whereas it is incorrect to assert that these negotiations were not carried on upon the legal plane, since the Portuguese Government constantly protested against the violation by the Government of India of the rights which it is claiming in the present proceedings, and since it drew attention to the responsibility which the Government of India thereby incurred;

For these reasons,

May it please the Court

to dismiss the Third Preliminary Objection of the Government of India.

IV. On the Fourth Preliminary Objection

Whereas the principle of reciprocity, laid down by Article 36 of the Statute of the Court, relates to the extent of the obligations binding upon the States involved in a dispute, at the time when that dispute is referred to the Court;

Whereas it does not apply to the measures which the said States would have been entitled to take before the case \vas brought before the Court, either for the purpose of putting an end to the binding force of their Declarations or for the purpose of restricting their scope;

Whereas the right, of which the Government of India claims to have been wrongfully deprived as a result of the speedy filing of the Portuguese Application, is not therefore covered by the principle of reciprocity as the scope of that principle is laid down by Article 36;

Whereas, even if this were not so, it would have been quite unnecessary for the Government of India to invoke this principle in order to limit the scope of its obligations relating to the compulsory jurisdiction of the Court, before the filing of the Application instituting proceedings, and whereas it was, therefore, in order to obtain this result, quite unnecessary for it to have cognizance of the Portuguese Declaration;

Whereas, furthermore, there is a flagrant contradiction between the First and Fourth Objections, for if the Portuguese reservation were without any legal validity, as contended by the Government of India in its First Objection, it is difficult to see how that Government could have relied on the said reservation for the purpose of drawing the consequences which it envisages in its Fourth Objection;

For these reasons,

May it please the Court

to dismiss the Fourth Preliminary objection of the Government of India.

V. On the Fifth Preliminary Objection

Whereas the Government of India requests the Court to derogate . from the provisions of Article 43 of the Statute and of the corresponding articles O; the Rules of Court relating to the normal course of the proceedings in contentious cases, claiming that, by international law, the questions which are the subject-matter of the present dispute fall exclusively within the jurisdiction of India;
Whereas, in order to adjudicate upon this claim in the light of all the necessary information, argument upon the merits would be necessary, while the Government of India in fact requests the Court definitively to dispense with such further argument by holding itself hic et nunc, without jurisdiction to adjudicate upon the Portuguese claim;

Whereas such a contention could in any event only be accepted if the Government of India showed that a summary consideration of the grounds relied upon by Portugal sufficed to make it clear that those grounds are manifestly lacking in substance and that it would consequently be superfluous to prolong the proceedings by complying with the relevant provisions of the Statute and of the Rules of Court;

Whereas the Government of India has failed to prove this, and whereas the arguments adduced, on either side, on the contrary [p137] show the need for full discussion in order to enable the Court to pass upon the substance of the grounds in question;

Whereas, furthermore, it is incorrect to assert that the subject-matter of the present dispute has in the past been regarded as concerning a matter within the exclusive jurisdiction of India, and that Portugal has indeed recognized that it possesses this character ;

Whereas the assertions put forward in this connection by the Government of India in paragraph 159 of its Preliminary Objections are based upon a mistaken interpretation of the claim submitted to the Court;

For these reasons,

May it please the Court

to dismiss the Fifth Preliminary Objection of the Government of India;

Or, in the alternative: to join it to the merits.

VI. On the Sixth Preliminary Objection

Whereas the Government of India, by its Declaration of February 28th, 1940, accepted the jurisdiction of the Court over all disputes arising after February 5th, 1930, 'with regard to situations or facts subsequent to the same date';

Whereas the situations and facts which are to be taken into consideration in applying this clause are solely those which constitute the source of the dispute;

Whereas the situations and facts which are the source of the dispute are all subsequent to February 5 th, 1930;

Whereas the Sixth Objection is therefore devoid of substance;

Whereas, in order to avoid this conclusion, the Indian Government has merely put forward a hypothesis and made an assertion, which is formally disputed, to the effect that Portugal neither claimed nor exercised a right of passage before February 5th, 1930, at least since the abrogation of the British-Portuguese Treaty of 1878;

Whereas full discussion of these points is essential, particularly with regard to the true scope of the said Treaty and of the effects of its abrogation;

Whereas such a discussion would raise questions of fact and of law with regard to which the Parties are, in several respects, in disagreement and which are too closely linked with the merits for the Court to be able to pass upon them, in the light of all the necessary information, within the compass of its consideration of a preliminary objection;

For these reasons,

May it please the Court

to dismiss the Sixth Preliminary Objection of the Government of India;

Or, in the alternative:

to join it to the merits. [p138]

VII. Whereas, in its Conclusions relating to the Fifth Preliminary Objection, the Government of India maintains:

' (d) both Portugal and India have accepted the compulsory jurisdiction of the Court only for legal disputes which may be decided by the Court under the provisions of Article 38, paragraph 1, of the Statute; and the dispute submitted to the Court by Portugal is not such a dispute and there has been no agreement between the Parties to submit the dispute to the Court under the provisions of Article 38, paragraph 2, of the Statute; in consequence for this reason also the Fifth Objection should be sustained';

Whereas this constitutes a new Objection [i.e. an Objection not advanced in the written pleadings];

Whereas it is manifestly lacking in substance as is shown by the legal grounds relied upon by the Portuguese Government in support of its Application;

Whereas, furthermore, in accordance with Article 62 of the Rules of Court, preliminary objections must be filed by a party at the latest before the expiry of the time-limit fixed for the delivery of its first pleading;

Whereas, in these circumstances, the said Objection would in any event be inadmissible;

For these reasons,
May it please the Court

to dismiss the new Objection raised by the Government of India in the guise of an argument in support of its Fifth Preliminary Objection.

VIII. Whereas the Application instituting proceedings was filed in the Registry of the Court on December 22nd, 1955;

Whereas the risk exists that the dispute may become aggravated so long as no decision on the merits is given and whereas that aggravation might compromise the execution of the said decision;

For these reasons,

May it please the Court

to recall to the Parties the universally admitted principle that they should facilitate the accomplishment of the task of the Court by abstaining from any measure capable of exercising a prejudicial effect in regard to the execution of its decision or which might bring about either an aggravation or an extension of the dispute."

On behalf of the Government of India, the following amended and supplementary Submissions were filed at the sitting of October 8th, 1957:

"1. Sixth Objection

Since India's Declaration of February 28, 1940, limited her acceptance of the compulsory jurisdiction of the Court to disputes arising after 5th February, 1930, with regard to situations or facts subsequent to that date; and since the present dispute as [p139] submitted to the Court by Portugal is a dispute which did not arise after 5th February, 1930, and was in any case a dispute with regard to situations or facts which were not subsequent to that date, the dispute is excluded from India's acceptance of compulsory jurisdiction under the Optional Clause by the express terms of the said limitation in India's Declaration of February 28, 1940, and in consequence the Court is without jurisdiction to entertain the Portuguese Application of 22nd December, 1955.

2. With regard to the Seventh Conclusion of the Government of Portugal

Since the submission of the Government of India in support of its Fifth Preliminary Objection quoted in the Seventh Conclusion of the Government of Portugal in no sense constitutes a new objection, but is simply one aspect of the contention of the Government of India that the matters in dispute fall exclusively within the domestic jurisdiction of India; and since the said submission of the Government of India is well-founded; in consequence the Seventh Conclusion of the Government of Portugal should be rejected.

3. With regard to the Eighth Conclusion of the Government of Portugal

Since the Government of Portugal has not invoked the power of the Court to indicate provisional measures under Article 41 of the Statute of the Court; and since that Government asks the Court to address an admonition to the Parties analogous to an indication of provisional measures in circumstances which would not justify the Court in making an Order under Article 41; and since that Government has not disclosed any valid grounds for asking the Court to address such an exceptional admonition to the Parties, and since it would in the circumstances of the present case be wholly inappropriate to accede to the request of the Government of Portugal; in consequence, the Eighth Conclusion of the Government of Portugal should be rejected."

On behalf of the Government of Portugal, the following Submissions were filed at the sitting of October 11th, 1957:

"Whereas the Government of India, by its Declaration of February z8th, 1940, has accepted the jurisdiction of the Court over all disputes arising after February 5th, 1930, with regard to situations or facts subsequent to the same date;

Whereas, by the terms of the Application instituting proceedings, the purpose of the reference of the dispute to the Court is to secure:

(a) recognition of the right of passage existing in favour of Portugal between its enclaved territories of Dadra and Nagar-Aveli and between these territories and its territory of Daman (littoral Daman);

(b) a finding that India has prevented and continues to prevent the exercise of that right; and [p140]

(c) that India should put an immediate end to this situation;

Whereas the earlier date of the grounds on which the claim is based is not relevant for the purpose of applying the reservation in the Indian Declaration of February 28th, 1940, on which the Sixth Preliminary Objection is founded;

Whereas, on the other hand, the situations and facts which are relevant in applying such a reservation are solely those which constitute the source of the dispute;

Whereas the dispute referred to the Court by the Portuguese Application of December 22nd, 1955, the purpose of which is recalled above, is undeniably subsequent to February 5th, 1930;

Whereas the same is true of the situations and facts which constitute the source of that dispute;

For these reasons,

May it please the Court

to dismiss the Sixth Preliminary Objection of the Government of India."

***

The Declarations by which the Parties accepted the compulsory jurisdiction of the Court are as follows:

Declaration of India of February 28th, 1940:

"On behalf of the Government of India, I now declare that they accept as compulsory ipso facto and without special convention, on condition of reciprocity, the jurisdiction of the Court, in conformity with paragraph 2 of Article 36 of the Statute of the Court for a period of 5 years from to-day's date, and thereafter until such time as notice may be given to terminate the acceptance, over all disputes arising after February 5th, 1930, with regard to situations or facts subsequent to the same date, other than:

disputes in regard to which the Parties to the dispute have agreed or shall agree to have recourse to some other method of peaceful settlement;

disputes with the government of any other Member of the League which is a Member of the British Commonwealth of Nations, all of which disputes shall be settled in such manner as the Parties have agreed or shall agree;

disputes with regard to questions which by international law fall exclusively within the jurisdiction of India; and

disputes arising out of events occurring at a time when the Government of India were involved in hostilities;

and subject to the condition that the Government of India reserve the right to require that proceedings in the Court shall be suspended in respect of any dispute which has been submitted to and is under consideration by the Council of the League of Nations, provided that notice to suspend is given after the dispute has been submitted to the Council and is given within 10 days of the notification of the initiation of the proceedings in the Court, and provided also that [p141] such suspension shall be limited to a period of 12 months or such longer period as may be agreed by the Parties to the dispute or determined by a decision of all the Members of the Council other than the Parties to the dispute."

Declaration of Portugal of December 19th, 1955:

"Under Article 36, paragraph 2, of the Statute of the International Court of Justice, I declare on behalf of the Portuguese Government that Portugal recognizes the jurisdiction of this Court as compulsory ipso facto and without special agreement, as provided for in the said paragraph 2 of Article 36 and under the following conditions:
(1) The present declaration covers disputes arising out of events both prior and subsequent to the declarations of acceptance of the "optional clause" which Portugal made on December 16, 1920, as a party to the Statute of the Permanent Court of International Justice.

(2) The present declaration enters into force at the moment it is deposited with the Secretary-General of the United Nations; it shall be valid for a period of one year, and thereafter until notice of its denunciation is given to the said Secretary-General.

(3) The Portuguese Government reserves the right to exclude from the scope of the present declaration, at any time during its validity, any given category or categories of disputes, by notifying the Secretary-General of the United Nations and with effect from the moment of such notification."

India has filed six Preliminary Objections to the exercise of jurisdiction by the Court in the present case. The Court will now proceed to examine these Objections.

First Preliminary Objection

The First Preliminary Objection of the Government of India is to the effect that the Court is without jurisdiction to entertain the Application of Portugal on the ground that the Portuguese Declaration of Acceptance of the jurisdiction of the Court of December 19th, 1955, is invalid for the reason that the Third Condition of the Declaration is incompatible with the object and purpose of the Optional Clause. There are, in the view of the Government of India, three main reasons for such incompatibility.

The Third Condition of the Declaration of Portugal provides as follows:

"3) The Portuguese Government reserves the right to exclude from the scope of the present declaration, at any time during its validity, any given category or categories of disputes, by notifying the Secretary-General of the United Nations and with effect from the moment of such notification." [p142]

In the first instance., the Government of India maintains that that Condition gives Portugal the right, by making at any time a notification to that effect, to withdraw from the jurisdiction of the Court a dispute which has been submitted to it prior to such a notification. This is what in the course of the proceedings was described as the retroactive effect attaching- to that notification. India asserts that such retroactive effect is incompatible with the principle and notion of the compulsory jurisdiction of the Court as established in Article 36 of the Statute and that the Third Condition is invalid inasmuch as it contemplates an effect which is contrary to the Statute.

The Government of Portugal has contested that interpretation and has affirmed that the Third Condition does not have such retroactive, effect and that, in consequence, it is not incompatible with Article 36 of the Statute.

In order to decide whether, as maintained by the Government of India, the Third Condition appended by Portugal is invalid, and whether such invalidity entails the invalidity of the Declaration in which it is contained. the Court must determine the meaning and the effect of the Third Condition by reference to its actual wording and applicable principles of law.

The words "with effect from the moment of such notification" cannot be construed as meaning that such a notification would have retroactive effect so as to cover cases already pending before the Court. Construed in their ordinary sense, these words mean simply that a notification under the Third Condition applies only to disputes brought before the Court after the date of the notification. Such an interpretation leads to the conclusion that no retroactive effect can properly be imputed to notifications made under the Third Condition. It is a rule of law generally accepted. as well as one acted upon in the past by the Court that, once the Court has been validly seised of a dispute, unilateral action by the respondent State in terminating its Declaration. in whole or in part. cannot divest the Court of jurisdiction. In the Nottebohm case the Court gave expression to that principle in the following words:

"An extrinsic fact such as the subsequent lapse of the Declaration, by reason of the expiry of the period or by denunciation, cannot deprive the Court of the jurisdiction already established." (I.C.J. Reports 1953, p. 123.)

That statement by the Court must be deemed to apply both to total denunciation, and to partial denunciation as contemplated in the Third Portuguese Condition. It is a rule of interpretation that a text emanating from a Government must, in principle, be interpreted as producing and as intended to produce effects m accordance with existing law and not in violation of it. [p143]

The second reason, contended for by the Government of India, for the incompatibility of the Third Portuguese Condition with the object and purpose of the Optional Clause, is that it has introduced into the Declaration a degree of uncertainty as to reciprocal rights and obligations which deprives the acceptance of the compulsory jurisdiction of the Court of all practical value. In particular, it was contended that in consequence of the Third Condition, the other Signatories are in a continuous state of uncertainty as to their reciprocal rights and obligations which may change from day to day.

While it must be admitted that clauses such as the Third Condition bring about a degree of uncertainty as to the future action of the accepting government, that uncertainty does not attach to the position actually established by the Declaration of Acceptance or as it might be established in consequence of recourse to the Third Condition.

As Declarations, and their alterations, made under Article 36 must be deposited with the Secretary-General. it follows that, when a case is submitted to the Court, it is always possible to ascertain what are, at that moment. the reciprocal obligations of the Parties in accordance with their respective Declarations. Under the existing system, Governments can rely upon being informed of any changes in the Declarations in the same manner as they are informed of total denunciations of the Declarations it is true that during the interval between the date of a notification to the Secretary-General and its receipt by the Parties to the Statute, there may exist some element of uncertainty. However, such uncertainty is inherent in the operation of the system of the Optional Clause and does not affect the validity of the Third Condition contained in the Portuguese Declaration.

It must also be noted that, with regard to any degree of uncertainty resulting from the right of Portugal to avail itself at any time of its Third Condition of Acceptance, the position is substantially the same as that created by the right claimed by many Signatories of the Optional Clause, including India, to terminate their Declarations of Acceptance by simple notification without any obligatory period of notice. India did so on January 7th, 1956, when it notified the Secretary-General of the denunciation of its previous Declaration of Acceptance, for which it simultaneously substituted a new Declaration incorporating reservations which were absent from its previous Declaration. Hg- substituting, on January 7th, 1956, a new Declaration for its earlier Declaration, India achieved, in substance, the object of Portugal's Third Condition.

It has been argued that there is a substantial difference, in the matter of the certainty of the legal situation, between the Third Portuguese Condition and the right of denunciation without notice.[p144]

In the view of the Court there is no essential difference, with regard to the degree of certainty, between a situation resulting from the right of total denunciation and that resulting from the Third Portuguese Condition which leaves open the possibility of a partial denunciation of the otherwise subsisting original Declaration.

Neither can it be admitted, as a relevant differentiating factor, that while in the case of total denunciation the denouncing State can no longer invoke any rights accruing under its Declaration, in the case of a partial denunciation under the terms of the Third Condition Portugal can otherwise continue to claim the benefits of its Acceptance. For, as the result of the operation of reciprocity, any jurisdictional rights which it may thus continue to claim for itself can be invoked against it by the other Signatories, including India.

Finally, as the third reason for the invalidity of the Third Condition, it has been contended that that Condition offends against the basic principle of reciprocity underlying the Optional Clause inasmuch as it claims for Portugal a right which in effect is denied to other Signatories who have made a Declaration without appending any such condition. The Court is unable to accept that contention . It is clear that any reservation notified by Portugal in pursuance of its Third Condition becomes automatically operative against it in relation to other Signatories of the Optional Clause. If the position of the Parties as regards the exercise of their rights is in any way affected by the unavoidable interval between the receipt by the Secretary-General of the appropriate notification and its receipt by the other Signatories, that delay operates equally in favour of or against all Signatories and is a consequence of the system established by the Optional Clause.

Neither can the Court accept the view that the Third Condition is inconsistent with the principle of reciprocity inasmuch as it renders inoperative that part of paragraph 2 of Article 36, which refers to Declarations of Acceptance of the Optional Clause in relation to States accepting the "same obligation". It is not necessary that the "same obligation" should be irrevocably, defined at the time of the deposit of the Declaration of Acceptance for the entire period of its duration. That expression means no more than that, as between States adhering to the Optional Clause, each and all of them are bound by such identical obligations as may exist at an- time during which the Acceptance is mutually binding.

As the Court finds that the Third Portuguese Condition is not inconsistent with the Statute, it is not necessary for it to consider the question whether, if it were invalid, its invalidity would affect the Declaration as a whole.

For these reasons, the First Preliminary Objection of the Government of India must be dismissed.[p145]
***

Second Preliminary Objection

The Second Preliminary Objection of the Government of India is based on the allegation that—as the Portuguese Application of December 22nd, 1955, was filed before the lapse of such brief period as in the normal course of events would have enabled the Secretary-General of the United Nations, in compliance with Article 36, paragraph 4, of the Statute of the Court, to transmit copies of the Portuguese Declaration of Acceptance of December 19th, 1955, to the other Parties to the Statute—the filing of the Application violated the equality, mutuality and reciprocity to which India was entitled under the Optional Clause and under the express condition of reciprocity contained in its Declaration of February 28th, 1940; that, in consequence, the conditions necessary to entitle the Government of Portugal to involve the Optional Clause against India did not exist when that Application was filed; and that, as a result, the Court is without jurisdiction to entertain the Application.

The principle of reciprocity forms part of the system of the Optional Clause by virtue of the express terms both of Article 36 of the Statute and of most Declarations of Acceptance, including that of India. The Court has repeatedly affirmed and applied that principle in relation to its own jurisdiction. It did so, in particular, in the case of Certain Norwegian Loans (I.C.J. Reports 1957, pp. 22-23) where it recalled its previous practice on the subject. However, it is clear that the notions of reciprocity and equality are not abstract conceptions. They must be related to some provision of the Statute or of the Declarations.

The two questions which the Court must now consider are as follows: in filing its Application on the date that it did, namely, December 22ntl, 1955, did Portugal act in a manner contrary to any provision of the Statute ? If not, did it thereby violate any right of India under the Statute or under its Declaration ?

In the course of the oral argument the Government of India disclaimed any intention of contending that Portugal was not entitled to file its Application until the notification of the Secretary-General had reached the Government of India. The latter merely maintained that before filing its Application Portugal ought to have allowed such period to elapse as would reasonably have permitted the notification of the Secretary-General to take its "appropriate effects".

The material dates. as stated by the Government of India, are as follows: On December 19th, 1955, the Representative of Portugal to the United Nations made the Declaration, on behalf of the Government of Portugal, accepting the compulsory jurisdiction of [p146] the Court under the Optional Clause. On December 22nd, the Government of Portugal filed in the Court the Application instituting the present proceedings against the Government of India. On the same day, a telegram was sent by the Court notifying the Government of India of the filing of the Portuguese Application. On December 3oth, 1955, the Government of India received a copy of the Portuguese Declaration of Acceptance which had been obtained from the Court by its Embassy at The Hague. On January 19th, 1956, a copy of the Portuguese Declaration was officially transmitted to the Government of India by the Secretary-General of the United Nations in compliance with Article 36, paragraph 4, of the Statute.

The Government of India has contended that, in filing its Application on December 22nd. I955, the Government of Portugal did not act in conformity with the provisions of the Statute. The Court is unable to accept that contention. The Court considers that, by the deposit of its Declaration of Acceptance with the Secretary-General, the accepting State becomes a Party to the system of the Optional Clause in relation to the other declarant States, with all the rights and obligations deriving from Article 36. The contractual relation between the Parties and the compulsory jurisdiction of the Court resulting therefrom are established, "ipso facto and without special agreement", by the fact of the making of the Declaration. Accordingly, every State which makes a Declaration of Acceptance must be deemed to take into account the possibility that, under the Statute, it may at any time find itself subjected to the obligations of the Optional Clause in relation to a new Signatory as the result of the deposit by that Signatory of a Declaration of acceptance. A State accepting the jurisdiction of the Court must expect that an Application may be filed against it before the Court by a new declarant State on the same day on which that State deposits with the Secretary-General its Declaration of Acceptance. For it is on that very day that the consensual bond, which is the basis of the Optional Clause, comes into being between the States concerned. When India made its Declaration of acceptance of February 28th, 1940, it stated that it accepted the jurisdiction of the Court for a specified period "from to-day's date".

It has been contended by the Government of India that as Article 36 requires not only the deposit of the Declaration of Acceptance with the Secretary-General but also the transmission by the Secretary-General of a copy of the Declaration to the Parties to the Statute, the Declaration of Acceptance does not become effective until the latter obligation has been discharged. However, it is only the first of these requirements that concerns the State making the Declaration. The latter is not concerned with the duty of the Secretary-General or the manner of its fulfilment. The legal effect of a Declaration does not depend upon subsequent action or inaction of the Secretary-General. Moreover, unlike some other [p147] instruments, Article 36 provides for no additional requirement, for instance, that the information transmitted by the Secretary-General must reach the Parties to the Statute, or that some period must elapse subsequent to the deposit of the Declaration before it can become effective. Any such requirement would introduce an element of uncertainty into the operation of the Optional Clause system. 'The Court cannot read into the Optional Clause any requirement of that nature.

India has further contended that, even though the filing of the Application by Portugal be held to be otherwise in accordance with Article 36, it was effected in a manner which violated rights of India under the Statute and under its Declaration of Acceptance.

Apart from complaining generally of an impairment of its rights of equality, mutuality and reciprocity under the Statute, India has not specified what actual right has been adversely affected by the manner of the filing of the Portuguese Application. 'The Court has been unable to discover what right has, in fact, thus been violated.

As the Court has arrived at the conclusion that the manner of filing the Portuguese Application was neither contrary to Article 36 of the Statute nor in violation of any right of India under the Statute, or under its Declaration of Acceptance, the Court must dismiss the Second Preliminary Objection of the Government of India.

***
Fourth Preliminary Objection
As the Second and Fourth Preliminary Objections are concerned with cognate aspects of the filing of the Portuguese Application, it is convenient to consider the Fourth Preliminary Objection before examining the Third.

In the Fourth Preliminary Objection, India contended that, since it had no knowledge of the Portuguese Declaration before Portugal filed its Application, it was unable to avail itself, on the basis of reciprocity, of the Third Portuguese Condition and to exclude from the jurisdiction of the Court the dispute which is the subject-matter of the Portuguese Application. This Objection is based on considerations substantially identical with those adduced in support of the Second Preliminary Objection. Accordingly, the Court will confine itself to recalling what it has already said in dealing with the Second Preliminary Objection, in particular that the Statute does not prescribe any interval between the deposit by a State of its Declaration of Acceptance and the filing of an Application by that State, and that the principle of reciprocity is not affected by any delay in the receipt of copies of the Declaration by the Parties to the Statute.

As the manner of the filing of the Portuguese Application did not in respect of the Third Portuguese Condition deprive India [p148] of any right of reciprocity under Article 36 of the Statute, so as to constitute an abuse of the Optional Clause, the Court cannot regard the Fourth Preliminary Objection of the Government of India as well founded.

***
Third Preliminary Objection

In its Third Preliminary Objection, as defined in the Submissions, the Government of India contended that, as the Portuguese Application of December 22nd, 1955, was filed before the Portuguese claim was effectively made the subject of diplomatic negotiations, the subject-matter of the claim had not yet been determined and that there was therefore, as yet, no legal and justiciable dispute between the Parties which could be referred to the Court under the Optional Clause. It was therefore submitted that, as the conditions necessary to entitle the Government of Portugal to invoke the Optional Clause did not exist at the time of the Application, the Court is without jurisdiction to entertain the Application.

In particular, the Third Objection is based on the allegation that, although neither Article 36 (2) of the Statute nor the Portuguese or Indian Declarations of Acceptance refer directly to the requirement of previous negotiations, the fact that the Application was filed prior to the exhaustion of diplomatic negotiations was contrary to Article 36 (2) of the Statute, which refers to legal disputes. It was contended by India that, unless negotiations had taken place which had resulted in a definition of the dispute between the Parties as a legal dispute, there was no dispute, in the sense of Article 36 (2) of the Statute, the existence of which had been established in the Application and with respect to which the Court could exercise jurisdiction.

In examining this Objection, the Court must consider the question of the extent to which, prior to the filing of the Application by Portugal, negotiations had taken place between the Parties in the matter of the right of passage. An examination of these negotiations shows that, although they cover various aspects of the situation arising out of the political claims of India in respect of the enclaves, a substantial part of these exchanges of views was devoted, directly or indirectly, to the question of access to the enclaves. A survey of the correspondence and Notes laid before the Court reveals that the alleged denial of the facilities of transit to the enclaves provided the subject-matter of repeated complaints on the part of Portugal; that these complaints constituted one of the principal objects of such exchanges of views as took place; that, although the exchanges between the Parties had not assumed the character of a controversy as to the nature [p149] and extent of the legal right of passage, Portugal described the denial of passage requested by it as being inconsistent not only with requirement; of good neighbourly relations but also with established custom and international law in general; and that these complaints w-ere unsuccessful.

While the diplomatic exchanges which took place between the two Governments disclose the existence of a dispute between them on the principal legal issue which is now before the Court, namely, the question of the right of passage, an examination of the correspondence shows that the negotiations had reached a deadlock.

It would therefore appear that assuming that there is substance in the contention that Article 36 (2) of the Statute, by referring to legal disputes, establishes as a condition of the jurisdiction of the Court a requisite definition of the dispute through negotiations, the condition was complied with to the extent permitted by the circumstances of the case.

The Court finds that the legal issue was sufficiently disclosed in the diplomatic exchanges, and considers that the Government of Portugal has complied with the .conditions of the Court's jurisdiction as laid down in Article 36 (2) of the Statute. Accordingly, the Court must dismiss the Third Preliminary Objection.
***

Fifth Preliminary Objection

In its Fifth Preliminary Objection the Government of India has relied on the reservation which forms part of its Declaration of Acceptance of February 28th, 1940, and which excludes from the jurisdiction of the Court disputes with regard to questions which by international law fall exclusively within the jurisdiction of the Government of India. In particular, it was asserted by the Government of India that the facts and the legal considerations adduced before the Court did not permit the conclusion that there was a reasonably arguable case for the contention that the subject-matter of the dispute is outside the exclusive domestic jurisdiction of India. It \vas therefore submitted that the dispute is outside the jurisdiction of the Court.

The relevant Submissions of the Government of India filed on September 27th, 1957, are based largely on the following assertions: in paragraph (a) of its Submissions on the Fifth Objection it is asserted that "the Portuguese claim to a right of transit ... cannot be regarded as a reasonably arguable cause of action under international law unless it is base6 on the express grant or specific consent of the territorial sovereign", and that "the facts presented to the Court in the Pleadings of the Parties show no such express grant or specific consent of the territorial sovereign as could place [p150] a limitation on the exercise of India's jurisdiction...". In paragraph (6) it is asserted that none of the grounds put forward by the Government of Portugal, namely, treaty, custom and general principles of law, can be regarded on the facts and the law which have been presented to the Court as reasonably arguable under international law. Paragraph (c) deals exclusively with factual aspects of the matter before the Court. India urges that the Fifth Preliminary Objection must be sustained for the reason that "regardless of the correctness or otherwise of the conclusions set out in paragraphs 4 (a) and 4 (b), the uncontradicted facts presented in the Pleadings of the Parties establish that the question of transit between Daman and the enclaves has always been dealt with both by Portugal and the territorial sovereign on the basis that it is a question within the exclusive competence of the territorial sovereign". Finally, in paragraph (II) it is urged that the dispute submitted to the Court by Portugal is not a legal dispute which may be decided by the Court under Article 38, paragraph I of the Statute.

The facts on which those Submissions of the Government of India are based are not admitted by Portugal. The elucidation of those facts, and their legal consequences, involves an examination of the actual practice of the British, Indian and Portuguese authorities in the matter of the right of passage - in particular as to the extent to which that practice can be interpreted, and was interpreted by the Parties, as signifying that the right of passage is a question which according to international law is exclusively within the domestic jurisdiction of the territorial sovereign. There is the further question as to the legal significance of the practice followed by the British and Portuguese authorities, namely, whether that practice was expressive of the common agreement of the Parties as to the exclusiveness of the rights of domestic jurisdiction or whether it provided a basis for a resulting legal right in favour of Portugal. There is, again, the question of the legal effect and of the circumstances surrounding the application of Article 17 of the Treaty of 1779 and of the Mahratha Decrees issued in pursuance thereof.

Having regard to all these and similar questions, it is not possible to pronounce upon the Fifth Preliminary Objection at this stage without prejudging the merits. Accordingly, the court decides to join that Objection to the merits.

In these circumstances, it is not necessary for the Court to examine the other questions relating to the Fifth Objection which have been raised by the Parties in their Submissions.[p151]

***

Sixth Preliminary Objections

In its Sixth Objection the Government of India contended that the Court is without jurisdiction on the ground that India's Declaration of February 28th, I940, accepting the compulsory jurisdiction of the Court is limited to "disputes arising after February 5th, 1930, with regard to situations or facts subsequent to the same date". In particular, the Government of India maintained: (a) that the dispute submitted to the Court by Portugal is a dispute which did not arise after February 5th, 1930, and (b) that in any case it is a dispute with regard to situations 'and facts prior to that date.

The Court must examine the relevant Indian reservation, in the first instance, in so far as it refers to the date on which the dispute may be said to have arisen. The first contention advanced in this connection by the Government of India is that the dispute submitted to the Court did not arise after February 5th, 1930, but—partly or wholly - before that date. However, the Government of Portugal contends that the dispute submitted to the Court arose after 1953, when the Government of India adopted certain measures relating to passage and transit between the littoral territory of Daman and the enclaves of Dadra and Nagar-Aveli.

That divergence of views cannot be separated from the question whether or not the dispute submitted to the Court is only a continuation of a dispute which divided Portugal and the territorial sovereign prior to 1930 concerning the right of passage. The Court, having heard conflicting arguments regarding the nature of the passage formerly exercised, is not in a position to determine at this stage the date on which the dispute arose or whether or not the dispute constitutes an extension of a prior dispute.

Similar considerations apply to the second element of the reservation ratione temporis which forms part of the Indian Declaration of Acceptance, namely, in so far as it refers to "situations or facts" subsequent to 5th February, 1930.

It was contended that the question of the existence or non-existence of a legal right of passage was not, prior to 1930, in controversy between the Parties concerned and that they managed throughout to settle, without raising or resolving the question of legal right, the practical problems arising in this connection. On the other hand it was also contended that the dispute nom7 before the Court is a continuation of a conflict of views going as far as 1818, and that it is a dispute "beyond any question with reference to situations or facts stretching far back before 1930". [p152]

The Court is not at present in possession of sufficient evidence to enable it to pronounce on these questions. To do that would necessitate an examination and clarification of, often complicated, questions of fact bearing on the practice pursued by the authorities concerned for a period of very considerable duration and stretching back to 1818, or even 1779. There are other factors which give rise to similar considerations. These factors include the disputed interpretation of the Treaty of 1779 between the Mahrathas and the Portuguese. Any evaluation of these factors, although limited to the purposes of the Sixth Preliminary Objection, would entail the risk of prejudging some of the issues closely connected with the merits. Accordingly, the Court must join the Sixth Preliminary Objection to the merits.

***

The Government of Portugal added to its Submissions a statement requesting the Court to recall to the Parties the universally admitted principle that they should facilitate the accomplishment of the task of the Court by abstaining from any measure capable of exercising a prejudicial effect in regard to the execution of its decisions or which might bring about either an aggravation or an extension of the dispute. The Government of Portugal has expressly disclaimed any intention of invoking the provisions of Article 41 of the Statute concerning the indication of interim measures. The Court does not consider that, in the circumstances of the present case, it should comply with the request of the Government of Portugal.

For these reasons.

The Court,

by fourteen votes to three,
rejects the First Preliminary Objection;

by fourteen votes to three,
rejects the Second Preliminary Objection;

by sixteen votes to one,
rejects the Third Preliminary Objection;

by fifteen votes to two,
rejects the Fourth Preliminary Objection;

by thirteen votes to four,
joins the Fifth Preliminary Objection to the merits;

by fifteen votes to two,
joins the Sixth Preliminary Objection to the merits; [p153]

resumes the proceedings on the merits;
and fixes the following time-limits for the rest of the procedure:

for the filing of the Counter-Memorial of the Government of India, February 2jth, 1958;

for the filing of the Reply of the Government of Portugal, May 25th, 1958:

for the filing of the Rejoinder of the Government of India. July 25th 1958.

Done in English and French, the English text being authoritative, at the Peace Palace, The Hague, this twenty-sixth day of November, one thousand nine hundred and fifty-seven, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Portuguese Republic and to the Government of the Republic of India, respectively.

(Signed) Green H. Hackworth.
President.

(Signed) J. Lopez Olivan,
Registrar.

Judge Kojevnikov states that he cannot concur either in the operative clause or in the reasoning of the Judgment because, in his opinion, the Court should at the present stage of the proceedings hold that it is without jurisdiction on one or indeed more of the Preliminary Objections raised by the Government of India.

Vice-President Badawi, availing himself of the right conferred upon him by Article 57 of the Statute, appends to the Judgment of the Court a statement of his dissenting opinion.

Judge Klaestad, availing himself of the right conferred upon him by Article 57 of the Statute, appends to the Judgment of the Court a statement of his dissenting opinion, in which M. Fernandes, Judge ad hoc, concurs.

Mr. Chagla, Judge ad hoc, availing himself of the right conferred upon him by Article 57 of the Statute, appends to the Judgment of the Court a statement of his dissenting opinion.

(Initialled) G. H. H.

(Initialled) J. L. O.

[p154]
DISSENTING OPINION OF VICE-PRESIDENT BADAWI

[Translation]

I am in agreement with the decisions of the Court on Objections 1, 3, 4 and 5, without, however, subscribing to certain aspects of the reasoning for those decisions.

I regret, however, that I cannot concur in the decisions relating to Objections 2 and 6, which I consider well-founded. Each of these Objections would be sufficient in itself to exclude the jurisdiction of the Court to deal with the dispute relating to right of passage.

***

The Second Objection relates to the premature filing of the Portuguese Application of December 22nd, 1955.

The Portuguese Declaration was deposited with the Secretary-General on December 19th, but the Full Powers of the representative of that State were signed at Lisbon only on the 20th and were transmitted to the Secretary-General only on the 21st.

Therefore, although the declaration was submitted on December 19th, it was properly deposited only on the 21st.

But the Application to the Court was filed on December 22nd. The Government of India, as a result of its own investigations, u7as able to discover the existence of the Declaration towards the end of December, but the Secretary-General did not transmit it to the States until January 1956 (the 19th).

India bases its Objection on the lack of equality, mutuality and reciprocity, but these bases are for India but the consequences of the consensual character of the Declarations. In my opinion, these consequences do not furnish any additional force to the argument based on that consensual character. I shall, therefore, confine myself to this consensual character, the basis of this Objection.

It is generally recognized that a State can be brought before an international tribunal only with its consent. The system of Declarations, however ingenious it may be as a means of overcoming certain hesitations and of finding a practical and variable formula for the acceptance of the jurisdiction of the Court without a rule which is directly and uniformly binding, is none the less based on the idea of consent.

When Article 36 of the Statute uses the words "ipso facto and without special agreement", it stresses the conventional character of Declarations and it confirms that character by the expression "in relation to any other State accepting the same obligation". These words make it quite impossible to attribute to a Declaration by itself a unilateral character and a binding effect on this ground. [p155]

It has been said that the Court has, in certain passages in its decisions, described Declarations as unilateral acts, but an examination of these passages shows that this description in no way signifies that a Declaration by itself and of its own force binds other States. The Court was simply indicating that for the purpose of interpreting such Declarations their unilateral origin should be taken into consideration.

Portugal, moreover, does not contest the consensual character of the legal relationship which is formed between States which have subscribed to Declarations accepting the compulsory jurisdiction of the Court. But it has argued that what creates the consensual bond between these States is the coinciding of their Declarations, or, more accurately, the provision of Article 36, paragraph 2, which establishes a reciprocity of rights and obligations as between the States accepting the same obligation. But that reciprocity cannot create the agreement. It may define its extent. But what creates the agreement here, as in every other meeting of wills, is always the basic idea of offer and acceptance.

Indeed, any Declaration can be analysed only into an acceptance, by the State depositing it, of the Declarations of those States which have preceded it and into an offer by it to them. This analysis is particularly evident when the new Declaration contains new reservations.

But whichever, in this analysis, is the State which offers and that which accepts, it is essential in each case that the offer should be accepted by the State to which it is addressed. This acceptance, even though it be regarded as delimited by reciprocity, is none the less indispensable. It must exist, for it is the basis of the resulting obligation upon these States to submit to the jurisdiction of the Court. It matters little whether the acceptance be actual or constructive, on the basis of a legal interpretation that communication is equivalent to acceptance, it must always be recognized as the only foundation for the jurisdiction of the Court.

***

It goes without saying that the Secretary-General is not the ultimate recipient of the Declaration, which is deemed to be addressed or notified by the State making it to the other States which have already accepted the compulsory jurisdiction, so that a binding contract may be formed between them.

The notification of Declarations to the Secretary-General, or their deposit with him and his obligation to communicate them to other States, are merely intended to take the place of direct communications. The Secretary-General is thus a mere depository entrusted with the duty of bringing the Declarations to the knowledge of the other States. By channelling these communications through the office of the Secretary-General, the Statute [p156] was simply seeking to ensure communication in an efficient and regular way. This communication constitutes a special obligation of the Secretary-General which is provided for by Article 36 of the Statute.

Translated into legal terminology, the system of Declarations constitutes a contract by correspondence between the declarant State and the other States through the agency of the Secretary-General as an intermediary who, in these cases, constitutes a stage in the transmission. Counsel for Portugal indeed recognized the correctness of this legal construction, but he contended that the contract was formed by the mere deposit with the Secretary-General.

It is necessary in this connection to recd that every Declaration is itself an acceptance and an offer. The offer by Portugal, contained in its Declaration and addressed to the other States, had not been accepted by India or, indeed, communicated to India.

***
With regard to the formation of contracts by correspondence, municipal legal systems adopt different positions. Some adopt the declaration theory; others the dispatch theory. Still others take the view that the contract is concluded at the time and place where the author of the offer becomes aware of its acceptance. and there is the further view, which is that of the French Cour de Cassation, that it is a question of fact which has to be decided in the light of the circumstances of each case.

Portugal contends that Article 36 of the Statute is silent on this point but, being obliged to recognize the consensual character of Declarations as a tacit implication of the system, it seeks to explain the expression of consent as between States by the mere coinciding of their Declarations. But, in fact, this coincidence is often lacking and, in any event, it constitutes only the measure and the extent of the respective obligations of the States.

It is true that the point is a new one and one for which there is no precedent. Generally speaking, the point has not been dealt with either in the writings of publicists or in judicial decisions. The present case reveals the desire that was felt to spring a surprise and thus to avoid the possibility of abrogation of or exclusion from a Declaration. But it fails wholly to satisfy the minimum conditions required for the formation of a contract.

Since the Declaration was deposited with the Secretary-General on the eve of the Application, it would have been impossible to suppose that it would be transmitted to the other States within 24 hours. The position therefore is the same as if the Declaration had not been made.

It is unnecessary and would indeed be useless to discuss the question of the moment at which consent may be said to exist, at which a contract may be regarded as having been formed between [p157] the declarant State and the other States. Whatever that moment may be, the position in the present case is that, in any event, and whatever criterion or moment may be adopted with regard to the formation of a contract by correspondence, it was prior to that moment. The present case is similar to one in which there is an offer which has not yet been dispatched.
***

In relying upon Article 36, paragraph 2, of the Statute to say that a Declaration produces its effects immediately and makes it permissible to seise the Court the day after it is deposited, the Court puts the emphasis on the expression "ipso facto", "de plein droit", but by isolating that expression from the following expression "and without special agreement", which completes it, the complete idea contained in the Statute has been dismembered and disregarded. What the Statute sought to provide was that there should be no need for the acceptance of the jurisdiction of the Court, of a special agreement (I stress the word "special") between each State and the other States. However, since submission to an international tribunal is essentially and pre-eminently conventional in character, such submission, in accordance with the Statute, is to result ipso facto from the convention which comes into being between the declarant State and the other States by the exchange of Declarations between them—an exchange the operation of which is ensured by the Statute through a dual obligation: that of the declaring State to deposit it with the Secretary-General and that of the latter to communicate it to the other States. The notion of a convention has thus been strictly observed both in substance and in form in the Optional Clause system.

But would it have been possible to preserve this idea without the operation of the classical notion of offer and acceptance? It is obvious that the authors of the Statute could not have brought about innovations in legal concepts. But apart from this classical mechanism, there remains only the theory of the declaration of the will and that of the contract by accession in which the dual elements of offer and acceptance become merged. Very few legal systems, however, recognize the first theory, whereas the second has no points of analogy with the Optional Clause.

Indeed, whereas the essential feature of the "adherence" or "accession" contract is uniformity, that of Declarations is variety and diversity. Each Declaration expresses the conditions, the purposes and the policy of the State which makes it. Furthermore, in "adherence contracts" one of the parties in fact is in a position in which it is impossible to discuss the terms of the contract. It is obliged to contract and gives its adherence to the all powerful will of the other. In this category are included, inter alia, contracts of [p158] service, contracts for transport and for insurance. What analogy can there be between such contracts and Declarations accepting jurisdiction ?

***

Reference has also been made to the case of collective or multilateral conventions in which a State, by acceding thereto, assumes by its mere act of accession the capacity of a party to the convention, benefiting from the rights conferred by the convention and subject to the obligations which it prescribes independently of acceptance by other States. But the position in this case is no different from that referred to in "adherence contracts" under municipal legal systems, since the convention is accepted as a whole—as it stands —and since indeed it remains open to accessions by the will of its signatories.

Reliance has, however, been placed upon the Opinion of the Court of May 28th, 1951, on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide. Rut, in the first place, this Opinion does not deal with the rule relating to adherence to collective conventions; furthermore, the Opinion recognizes that a given reservation is valid only if it is accepted by every one of the contracting parties and that this conception, directly inspired by the idea of contract, constitutes an undeniable principle. Moreover, the Opinion given by the Court was expressly limited to the Genocide Convention itself.

Furthermore, the Optional Clause system established by Article 36 of the Statute has nothing in common with a collective convention. It is concerned with individual Declarations, varying considerably in character, which, combined together by means of their mutual exchange, constitute conventions which are equally variable and limited by reciprocity.

***

Reference has been made to the practice of States which denounce and renew their Declarations in the belief that both their denunciation and their renewal take immediate effect, and, in particular, the contrast has been pointed out between the attitude and the contentions of India with regard to the premature character of the Application and the formula adopted by that State with reference to its denunciation of January 7th, 1957, of its own Declaration, a denunciation which was to take immediate effect; and it has been argued that what applies to the denunciation of the Indian Declaration should likewise apply to the Portuguese Declaration.

But it is more than doubtful, in my opinion, whether the word "immediate" can have the effect of eliminating the consensual [p159] notion in respect of the denunciation of the contract by which the jurisdiction of the Court is accepted.

In the case both of the formation of this contract and of its denunciation, the same rules relating to the necessity for acceptance should be applied.

I therefore consider that the juridical construction which both takes into account the factual elements of the dispute submitted to the Court and is in conformity with the Statute, does not make it possible to Say that any agreement existed between Portugal and India with regard to acceptance of the jurisdiction of the Court. It would follow that the Court is without jurisdiction to deal with the Application of December 22nd, 1955, on the basis of the Second Objection.

***

The Sixth Objection is based upon the provision relating to disputes arising after February 5th, 1930, 6th regard to situations or facts subsequent to that date; it is an objection ratione temporis.

I shall disregard the first phase in which this Objection bore a certain relationship of dependence with the Fifth Objection and in which the scope of the Objection was vague, imprecise and hypothetical, and I shall confine myself to the final form of the Objection, the form in which it was put forward in the oral reply. In this phase, as in the earlier ones, both Parties relied upon the Judgments in the Phosphates case and in the Electricity Company of Sofia case, and each relied upon the words used by the Permanent Court in the two decisions regarding the situation which it described as the source of the dispute.

In both the Phosphates case and the Electricity Company of Sofia case, there was a clear distinction between the dispute and the situation. In the Phosphates case, both the dispute and the situation which gave rise to it were, in the view of Italy, unlawful acts. But the Court traced back the situation, which gave rise to the conflict, to 1920, the date of the dahir establishing the phosphate monopoly, and it held itself without jurisdiction because that date was prior to the date of the ratification of the Declaration.

In the Electricity Company of Sofia case, the Bulgarian Government sought to trace back the dispute to an earlier date, namely, that of the arbitral awards made prior to the Declaration, in which case the Court would have been without jurisdiction; but the Court found that the awards had been recognized by both parties as being binding and that the question of their application after the date of the Declaration was the source of the disputes. [p160]

In the present case, in spite of the fact that India claims that the dispute was prior to rg30, its real date is 1954. This is the date contended for by Portugal and it was at the end of July of that year that it became crystallized.

But what is the fact or the situation which can be regarded as the source of the dispute ? Portugal, in the last phase of the oral arguments, expressed the view that "They are those which were constituted by the interruption of communications with the enclaves, brought about by the act of the Indian Union in 1954, and by the continuance of that state of affairs. At a given moment India decided to prevent access by Portugal to its enclaves and put that decision into effect" (p. 236 of the Oral Proceedings volume).

In an earlier phase, Portugal stated: "It is well known how this dispute came into existence. In its Notes of February 27th, 1950, and of January 14th and May 1st, 1953, the Indian Union manifested its claim to put an end to the sovereignty of Portugal over its territories in the Hindustan Peninsula by absorbing these territories. These Notes—as stated in paragraph 30 of the Memorial —constitute the 'prelude to the events which are the basis of the present action'." (Same volume, p. 117.)

According to this argument, the situation began in 1950 and gave rise to the dispute of 1954.

In the view of India, the situation must be traced back to 1818 and is consequently prior to 1930.

Before examining the Indian argument, it should be said that one cannot avoid the conclusion that Portugal is confusing the dispute and the situation. The fact that there is a culminating point in the dispute, namely, 1954, does not mean that it does not consist of more than one phase, and it was Portugal, in its first oral argument, which described the 1950 and 1953 Notes as "the prelude to the events which are the basis of the present action". To include within the words "facts and situations" the developments of the dispute would be to distort the meaning of those words. The dispute had already begun in 1950 and since it is both a political and legal dispute, it took various forms and passed through several stages.

In so far as India is concerned, since what is involved is merely passage on sufferance, the difficulties and obstacles which that country inflicted on Portugal, which began in 1950 and culminated in 1954, are but progressive manifestations of the dispute which constitute the dispute from its beginning until its end, and not the situation which gave rise to the dispute.

In the view of India, the facts and situations which gave rise to the dispute are those preceding the period 1950-1954, which go back into the past, to 1818, that is to say, the whole period during which passage was exercised.

It is out of this situation, with its ambiguous and equivocal character, that the dispute provoked by the measures taken in [p161] 1954 arose. What is here involved is a factual situation: the authorization of passage which was differently understood by each of the Parties: by India, as on sufferance or as an act of grace, and by Portugal, as a right. In reality, the situation is one susceptible of two interpretations. The exercise of passage would not be incompatible with either of those interpretations. In the actual conditions in which it was exercised, that is, by means of separate authorizations, it would appear rather to have been permitted on sufferance. Considered as a right, various elements of a right would appear to be lacking.

Indeed, the fragmentary and individual character of the requests for authorization in respect of each transport, subject to the discretion of the authority to which the requests were addressed, would prima facie exclude the conclusion that any general right did exist, and would likewise exclude the possibility that by the repetition of these authorizations a right of passage came into being. The right to refuse passage on any or every occasion is to be assumed from the necessity for a request.
However that may be, the situation which existed before 1930 was identical with that which existed afterwards, an equivocal situation which gave rise to the dispute of 1954, when India took the view that certain political circumstances justified it in finally refusing further to extend this sufferance. The lengthy duration of this sufferance has no bearing upon the character of this passage since, in the absence of any express recognition of right during this long period, there was no change in the equivocal position.

It matters little whether a dispute has or has not arisen expressly with regard to that situation, the priority of date is referable only to the situation and not to the dispute. The Declaration does not Say "concerning prior disputes" but "prior situations or facts". It is therefore applicable even if those facts or situations have never given rise to differences between the Parties.

***
The fact remains that this situation was prior to 1930, and whatever may be the validity and weight of the arguments adduced by Portugal in support of its conception of this passage as a right, the mere probability of India's conception of passage as on sufferance would be sufficient to justify the objection ratione temporis.

Even if it should appear on examination that the view which Portugal has formed or the legal construction which it puts upon this situation is correct, that would in no way alter the fact that the situation existed prior to 1930 and that fact, by itself, and irrespective of the merits of the question, is sufficient to exclude the dispute from the jurisdiction of the Court.

In the Phosphates in Morocco case, the Court considered it sufficient as a reason for holding itself without jurisdiction that the [p162] act, which was the subject of the dispute between France and Italy, was merely the application of a dahir of 1920, that is, a date earlier than the ratification of the French Declaration, and held that it was unnecessary to consider whether the dahir was or was not contrary to the international obligations assumed by France.

It follows that even if Portugal could succeed in showing that it did in reality enjoy a right, that possibility is wholly unconnected with the Sixth Objection. If the Court had rejected that Objection, it would have given retroactive effect to the Indian Declaration and would thus have adjudicated upon a situation some two centuries old.

***

It is of interest in this connection to recall what the Permanent Court said in the Phosphates case as an explanation of the raison d'être of this objection "ratione temporis":

"Not only are the terms expressing the limitation ratione temporis clear, but the intention which inspired it seems equally clear: it was inserted with the object of depriving the acceptance of the compulsory jurisdiction of any retroactive effects, in order both to avoid, in general, a revival of old disputes, and to preclude the possibility of the submission to the Court by means of an application of situations or facts dating from a period when the State whose action was impugned was not in a position to foresee the legal proceedings to which these facts and situations might give rise" (p. 24).

***

The facts and situations referred to in the Sixth Objection are not the same as the grounds on which the applicant relies, and the argument that the general principles of law and general custom are above and beyond dates is of no relevance in the present case.

These principles and custom do not constitute a situation. They might be a justification for a situation. But what is relevant to this Objection is priority of date, not legality. The fact or situation which is the source of a dispute has a causal connection with that dispute. Legal grounds have not, and cannot have, any such connection.

***

The Court has decided to join this Objection to the merits. This joinder is said to be justified, on the one hand, by the connection between the facts relevant thereto and those relevant to the Fifth Objection, and, on the other hand, by the need to have further clarification of the origins of the dispute. [p163]

But, in the first place, this Objection is distinct from and independent of the Fifth Objection, and the facts which make up its elements have nothing in common with those pertaining to the Fifth Objection.

In the second place, in order to uphold this Objection, it is necessary only to perceive the relationship between the present dispute and a prior situation said to have given rise to it. But the elements of this relationship are to be found in the documents now before the Court and they have been sufficiently discussed by the Parties. There is no need, in order to reach a conclusion with regard to this relationship, to accumulate facts or to discover any new facts.

In view of all these considerations, I am of opinion that the source of the dispute is the ambiguous and equivocal situation, resulting from a system of individual authorizations depending upon the discretion of the authority granting them, which was understood in different ways by the two Parties. This situation was determined or influenced by political considerations. The dispute arose when, as a result of changed political circumstances, India decided to refuse to continue these authorizations.

This situation having existed since the beginning of the last century, I consider the Objection to be justified and the Court to be without jurisdiction to deal with the dispute.

(Signed) A. Badawi.













[p164]
DISSENTING OPINION OF JUDGE KLAESTAD

In its Fifth Preliminary Objection the Government of India invokes a reservation contained in its Declaration of 1940 accepting the compulsory jurisdiction of the Court, which excludes from this jurisdiction "disputes with regard to questions which by international law fall exclusively within the jurisdiction of India". It contends that the Court lacks jurisdiction because the present dispute concerning Portugal's alleged right of passage over Indian territory between Daman and the enclaves and between the enclaves themselves relates to questions which fall exclusively within the national jurisdiction of India.

The legal principle applicable to a question of this kind was formulated by the Permanent Court of International Justice in its Advisory Opinion concerning Nationality Decrees issued in Tunis and Morocco. Applying that principle to the circumstances of the preliminary phase of the present dispute, I shall have to examine in a summary and provisional manner whether the legal grounds invoked by the Government of Portugal may justify the provisional conclusion that they are of juridical importance for the dispute and, if so, whether these grounds relate to questions of international law.

The Government of Portugal invokes a Treaty of 1779 concluded between Portugal and the Mahratha ruler and various Mahratha Decrees purporting to carry out the provisions of Article 17 of that Treaty. It contends that sovereignty over the enclaves was thereby ceded to Portugal by the Mahratha ruler, while the Government of India alleges that Portugal acquired only certain revocable fiscal rights with regard to the enclaves, and that the sovereignty over them was retained by the Mahratha State. It is possible that this divergence of opinion may have a bearing on the question of right of passage between Daman and the enclaves. As it involves the interpretation of a treaty, it relates to a question of international law.

The Government of Portugal further invokes a Convention of 1785 concluded with the Mahratha ruler. By this Convention it was provided that Portugal was obliged to quell any rebellion which might break out in the enclaves. It is argued that this provision presupposed Portugal's access to the enclaves, thereby affirming her right of passage over Mahratha territory. Whether this view is justified or not may depend on an interpretation of this Convention and would consequently relate to a question of international law.

The Government of Portugal also relies on an alleged local custom which during a period of nearly two centuries is said to [p165] have developed between Portugal and the Mahratha State and its successors. The question whether a possible usage with regard to passage between Daman and the enclaves was exercised in such a manner as to satisfy the requirements of Article 38, paragraph I (b), of the Statute of the Court is a question of international law (compare Judgment in the Asylum case, I.C.J. Reports 1950, pp. 276-277).

The Government of Portugal finally invokes an alleged international general custom as well as general principles of law recognized by civilized nations (Statute, Article 38, paragraphs I (b) and (c)), while the Government of India, refuting the Portuguese allegations in this respect, places itself upon the same ground of international law.

It is unnecessary to pursue this summary and provisional examination of the legal grounds invoked by the Government of Portugal in order to form an opinion upon the nature of the dispute. This examination is sufficient to show that in any case some of these grounds may be of juridical importance for the present dispute and that they relate to questions of international Law. It is in my view evident that the subject-matter of the dispute can only be decided on the ground of international law, and that it cannot be considered as relating to "questions which by international law fall exclusively within the jurisdiction of India". I am therefore unable to accept the Fifth Preliminary Objection.

With regard to the question whether this Objection should be rejected or joined to the merits, opinions have differed. In my view it should be rejected, since a summary and provisional examination of the legal grounds invoked by Portugal has in a sufficient measure disclosed elements of international law which may be of relevance for the decision of the dispute.

This provisional finding as to the nature of the dispute does not in any way prejudge the consideration of the merits. With regard to the question whether the Portuguese contentions as to the alleged right of passage over Indian territory are justified or not, I have formed no opinion whatsoever. Such an opinion could be arrived at only when the dispute at the next phase of the proceedings has been argued and considered on the merits. The preliminary question whether the Court has jurisdiction to decide these merits should be distinguished from the actual exercise of that jurisdiction.

With regard to the other questions in dispute, I am in general agreement with the Court.

(Signed) Helge Klaestad.


























[p166]DISSENTIKG OPINION OF JUDGE CHAGLA

I regret that I am unable to agree with the conclusion arrived at by the majority of my colleagues. As the matter is of considerable importance, I think it necessary to give the reasons for my dissent.

There are two unique features in this case—one is the third condition in the Portuguese Declaration, and the other is that the Portuguese Application which started this case was filed within three days of the making of the Declaration and before the provision contained in the second part of Article 36 (4) of the Statute of the Court could be complied with. Neither of these aspects has ever been considered by this Court, and they both raise very important questions with regard to the jurisdiction of the Court.

Turning to the First Objection of India, it may be readily granted that the Optional Clause gives the widest freedom to a State which submits to the compulsory jurisdiction of the Court. This freedom is in two respects. A State has the right to define the categories of disputes which it is prepared to submit to the compulsory jurisdiction of the Court. It may make any reservation it likes and it may limit the categories to any extent that it desires. The other respect is that it can limit the time of the pendency of the Declaration. The Declaration may last two years, one year, six months, or even it could be terminable on mere notice. But the third condition of Portugal is an entirely different kind of reservation. It reserves the right to Portugal to alter and modify the scope of its Declaration during the pendency of that Declaration.

It was urged by India that this reservation was retroactive and it was open to Portugal to withdraw a pending litigation by having resort to this reservation. It is pointed out that the expression "from the date of the notification" used in the third condition only indicates the point of time from which the reservation becomes effective; it does not refer to its scope or ambit. There is no limitation placed b3- Portugal upon the extent of the reservation and, therefore, it is suggested that Portugal, under this third condition, reserves to itself the right of withdrawing a pending litigation before the Court. India is not without support in this interpretation. The reaction of Sweden to this condition was the same as India. (See Sweden's Note to the Secretary-General of the United Nations dated 23rd February, 1956.) Portugal replied to this Note by its Note of 5th July, 1956, in which it stated that this condition did not warrant the conclusion that the Portuguese [p167]Government would be in a position to withdraw from the jurisdiction of the Court any dispute, or category of disputes, already referred to it. If the reservation is retroactive, then there can be no dispute that the reservation is bad. On the other hand, it must be borne in mind that a court must always lean against giving retroactive or retrospective effect to an instrument, the more so when such an interpretation is likely to invalidate the instrument and to deprive a tribunal of its jurisdiction. Even if the language of the reservation is susceptible of this interpretation, if the other interpretation is possible, the Court would rather give the interpretation to the instrument which would render it valid and which would not deprive this Court of its jurisdiction.

But whatever interpretation the Court places upon this condition, it must be an interpretation based upon the language used in the instrument itself. Xo assistance can be sought from the ex post facto and ex parte statement made by Portugal to which reference has been made by which it attempted to clarify and elucidate its own Declaration. So canon of construction is more firmly established than the one which lays down that the intention of a party to an instrument must be gathered from the instrument itself and not from what the party says its intention was.

But even if no retroactive effect can be given to Portugal's Declaration, it suffers from a defect, which, in my opinion, is fatal. Once a reservation is made with regard to categories of disputes which are submitted to the compulsory jurisdiction of the Court, categories over which the Court has jurisdiction must be specified and defined. The jurisdiction of the Court with regard to these categories of disputes must be finally accepted when the Declaration is made.

It is futile to try and draw a distinction between the Portuguese reservation and the right to terminate a Declaration at any time. It was suggested in the course of the arguments that, in the latter case, a State can put an end to its obligation to submit to the compulsory jurisdiction of the Court with regard to all categories of disputes, while, in the former case, a more limited right was reserved by Portugal in that it could only limit the scope of its obligation. This argument is specious. In the latter case, by terminating the Declaration, the juridical bond between a declarant State and the other State comes to an end. The State no longer adheres to the Optional Clause and is not liable to the compulsory jurisdiction of the Court with regard to any matter. In the former case, the juridical bond continues. In the latter case, both the right to bring a dispute before the Court and the obligation to submit to the jurisdiction of the Court come to an end. In the former case, the right remains and the State can put an end to the obligation with regard to any dispute at its own discretion.

Distinguished authors have regretted the continuous decline of the Optional Clause, and it is the duty of the Court to prevent any [p168] further decline of this Clause. Judge Lauterpacht in the Norwegian Loans case (I.C.J. Reports of Judgments, Advisory Opinions and Orders, 1957), when considering the French reservation in that case, said (p. 64) that it "tended to impair the legal—and moral— authority and reality of the Optional Clause", and also (p. 65) that it "threatens to disintegrate that minimum of compromise which is embodied in the Optional Clause". These observations also apply to the novel reservation embodied by Portugal in her Declaration. Acceptance by Portugal of the compulsory jurisdiction of the Court is entirely illusory. The minimum of compromise which is embodied in the Optional Clause is the right given to the State to limit the categories of disputes which it is prepared to submit to the compulsory jurisdiction of the Court; but any further derogation from that minimum of compromise should not be permissible. Once a State, by its Declaration, has expressed its clear will to submit to the compulsory jurisdiction of the Court a particular dispute, the jurisdiction of the Court with regard to that dispute must continue so long as the Declaration lasts. As the intention of the Optional Clause is to make a State accept the compulsory jurisdiction of the Court, any reservation which frustrates that intention must be held to be opposed to the general purpose of the Optional Clause and therefore invalid.

It was suggested that even if this reservation was invalid, as it did not affect the present case, it could be severed from the rest of the Declaration and the rest of the Declaration could be held valid. The doctrine of severance is well settled in municipal law and it also applies to international law. If a provision in an instrument is an essential condition, and if the court is satisfied that in the absence of that essential condition the instrument would not have been executed, then if the condition is bad, the court is powerless and the whole instrument must be declared to be invalid. Otherwise, the court would be writing a new instrument without the essential condition. In this case there cannot be the slightest doubt that the reservation we are considering is an essential condition of Portugal's adherence to the Optional Clause. It is on this condition that Portugal has agreed to confer jurisdiction upon the Court. The condition is of the very essence of the submission of Portugal to the compulsory jurisdiction of the Court, and if this condition is invalid, the whole Declaration must be declared to be invalid.

***

As I am of the opinion that India's First Objection should prevail, it would be unnecessary to consider her Second and Fourth Objections, but as they have been argued at considerable length [p169] and as they raise questions of considerable importance, I would like to express my opinion on them.

Both the Objections are based on the fact that Portugal's Declaration was deposited with the Secretary-General of the United Nations on the 19th December, 1955, and the present Application was filed on the 22nd December, 1955. I do not think there is any instance in the history of this Court where a State has filed an Application with such lightning speed. It is urged on behalf of Portugal that adherence to the Optional Clause is a unilateral act by a State and the Declaration comes into force immediately it is deposited with the Secretary-General of the United Nations. It is further pointed out that there is nothing in the Statute or the Rules of the Court which requires that any time should elapse between the making of the Declaration and the filing of the Application. It is therefore said that although copies of the Declaration were not transmitted by the Secretary-General to the Parties to the Statute nor to the Registrar of this Court, and although India had no knowledge that any such Declaration had been made by Portugal, the Declaration became immediately effective, and to the extent that the same obligations were undertaken by the Declaration of Portugal and the Declaration of India, India became liable to be called before the Court in answer to any claim made by Portugal which fell within the scope of the two Declarations.

The narrow question that we have to consider is whether the Statute of the Court contemplates that the Declaration should be immediately effective without knowledge, presumptive or actual, on the part of the other States who have already adhered to the Optional Clause—in other words, whether a juridical bond can be created by a new declarant with the other States who are already Parties to the Optional Clause by the mere deposit of the Declaration with the Secretary-General so as to entitle the new declarant immediately to file an Application and bring another State before the Court. India has contended that by this precipitous Application, Portugal has violated the principle of equality of States before the court, a principle which is the very basis of the Optional Clause. Portugal, on the other hand, has relied on the letter of the law and has urged that apart from the reciprocity of obligations at the date of the Declaration, there is no other reciprocity or equality which is contemplated by Article 36 (2) of the Statute. Whether the Statute permits a State to file an Application before the ink on its Declaration is dry or not, it will be agreed that this is a practice which should not be countenanced by the Court; and if there is any provision in the Statute which can permit the Court to refuse to entertain Portugal's Application, it should do so under the circumstances of the case.

Article 36 (3) of the Statute consists of two parts: one, making it incumbent upon a State making a Declaration to deposit it with the Secretary-General of the United Nations, and the second [p170] making it incumbent upon the Secretary-General to transmit copies thereof to the Parties to the Statute and to the Registrar of the Court. It is common ground that unless the Declaration is deposited as required by Article 36 (4), the Declaration cannot become effective. It is difficult to understand why, if the first part of Article 36 (4) is mandatory, the second part is not equally mandatory. It is said that the second part is purely administrative or procedural and it merely gives a direction to the Secretary-General to carry out his duties. It is difficult to accept the argument that a provision so unimportant should have found a place in so solemn a document as the Statute of the Court. In my opinion, the same importance should be attached to both the parts of Article 36 (4). There must have been some reason why the framers of the Statute inserted this provision in Article 36 (4) and the obvious reason is that some time should elapse between the making of the Declaration and the filing of an Application.

It is unnecessary in this case to speculate as to what is the proper time that should elapse between the making of the Declaration and the filing of the Application. Sufficient unto the day is the law thereof: and it will be sufficient to deal only with the facts of this case. It is clear that in this case an Application has been filed by Portugal before the second part of Article 36 (4) was complied with, and it is open to the Court to Say that the Application is premature and that Portugal should have waited until effect had been given to the provision of the second part of Article 36 (4).

Emphasis has been placed upon the expression "ipso facto" used in Article 36 (2) of the Statute. It is suggested that this expression makes it clear that the mere deposit of the Declaration, and nothing more, brings about the consensual bond between the declarant State and the State which has accepted the same obligation. The expression "ipso facto" must be read with the words that follow "and without special agreement". What the Statute emphasizes is that apart from the Declaration no special agreement is necessary to attract the Application of the Optional Clause. Article 36 (z), in my opinion, does not deal with the question as to when the Declaration becomes effective. For this purpose we have to turn to Article 36 (4).

There is also force in India's contention that by the timing of Portugal's Application, India was deprived of the right to invoke in her favour the third condition in Portugal's Declaration. It is now well-settled law that a State which is a Party to the Optional Clause is entitled to incorporate into its own Declaration any condition contained in the Declaration of any other State which has adhered to the Optional Clause. (See the Norwegian Loans case, I.C.J. Reports of Judgments, Advisory Opinions and Orders, 1957.) Therefore, it cannot be disputed that India had the right to make use of the third condition as against Portugal as much as Portugal [p171] had the right as against India. But if this right is to have any meaning or significance, it must be a right which can be exercised. Portugal, by filing the Application when she did, made it impossible for India to exercise that right. Portugal could have invoked this condition any time before filing the Application. India could have only invoked it if she had knowledge of the Declaration before the Application was filed. Once the Application was filed, inasmuch as the condition, as I have pointed out, is not retroactive, India was deprived of that right and was compelled to accept the jurisdiction of the Court whether she liked it or not. In the Norwegian Loans case, it was stated that Norway, equally with France, was entitled to except from the compulsory jurisdiction of the Court disputes falling within the ambit of France's reservation. In the Phosphates in Morocco case, although a particular limitation in the Declaration of one State did not appear in the Declaration of the other, it was held that the limitation must hold good as between the Parties; and in the Electricity Company of Sofia and Bulgaria case, the Court said that in consequence of the condition of reciprocity laid down in paragraph 2 of Article 36, the limitation contained in the Declaration of one State must be applicable as between the Parties.

Now what is the reciprocity that Article 36 (2) contemplates ? Is it the narrow reciprocity suggested by Portugal, namely, the reciprocity that should subsist at the date of the Application, or a wider reciprocity which would entitle a State to avail itself of every limitation contained in the other Party's Declaration to the same extent and in the same manner as the other Party?

It should be remembered that in the Norwegian Loans case, at the date of France's Application, Norway had not availed itself of the reservation contained in France's Declaration with regard to domestic jurisdiction. Therefore, if reciprocity had been narrowly construed in that case, Norway could not have availed herself of that limitation. But the Court held that Norway was as much entitled as France to plead that the particular dispute fell within her domestic jurisdiction. Therefore, strictly, the principle of reciprocity had been given effect to after France's Declaration had been filed and the Court did not confine itself to considering the situation as it existed at the date of France's Application. The question that now arises is whether the Court should not look at the situation as it existed before Portugal filed her Application. And if the Court comes to the conclusion that India could only have exercised the third limitation contained in Portugal's Declaration before Portugal filed her Application, and if India has been deprived of that right, then the principle of reciprocity under Article 36 (2) has been violated. In any view of the case, in my opinion, the [p172] Court should come to the conclusion that the haste with which Portugal filed this Application has resulted in an abuse of the Optional Clause and also an abuse of the processes of the Court, and therefore the Court should refuse to entertain Portugal's Application.

***

India's Third Objection is that the present dispute was brought before this Court without preliminary diplomatic negotiations and without the negotiations reaching a deadlock. It is urged by India that the jurisdiction of the Court is confined to deciding legal disputes, and before there can be a dispute, it must be clear that the controversy cannot be settled by negotiations. It is pointed out that before a State is brought before the bar of the International Court, every attempt should first be made to see whether the controversy in question could not be amicably settled. Our attention has been drawn to the various Notes that were exchanged between India and Portugal, and it does appear that Portugal never raised in these Notes the general question of a right of passage as such. What was discussed in these Notes was certain concrete questions relating to special situations arising out of disturbances which had occurred within the Portuguese enclaves; and what Portugal insisted on was that India had incurred an international responsibility by its behaviour at a given time and in a specific situation. Our attention is drawn to the fact that if the general question of a right of passage had been raised in this diplomatic exchange of Notes, this Court would have had a better conception of the right claimed by Portugal. As it is, the Court is not in a position to know or judge what is the actual nature of the right claimed by Portugal. Nor had India been given an opportunity to formulate or express her views with regard to the right claimed by Portugal before the matter was brought before the Court. Reliance is placed on the observations of the Court in the Electricity Company of Sofia and Bulgaria case (P.C.I.J., Series A/B, No. 77, p. 132): "What is essential is that, prior to the filing of an Application by one Party bringing a dispute before the Court, the other Party must have been given the opportunity to formulate and to express its views on the subject of the dispute. Only diplomatic negotiations will have afforded such an opportunity."

It is also urged by India that this de with regard to preliminary diplomatic negotiations does not operate only in those cases where there is a provision to this effect in a treaty between the Parties. The rule is of general application and is based on two considerations: (1) the need of the Court to know what is the subject-matter of the dispute, and (2) efforts made by the Parties to reach an agreement have been fruitless. [p173]

There can be no doubt as to the desirability of States negotiating with regard to a dispute and trying to arrive at a fair solution before they avail themselves of the compulsory jurisdiction of the Court. But what we have to consider is whether failure to pursue this desirable course deprives the Court of its jurisdiction. It is clear on the authorities that what the Court has insisted upon is the mere existence of a dispute, and a dispute has been defined as a divergence of opinions or views between two States: It has also been held that this divergence is established after one Government finds that the attitude of the other is contrary to its own. In the Ch.6rzozo Factory case (Series A, No. 13, p. IO), the Court pointed out that "it would no doubt be desirable that a State should not proceed to take as serious a step as summoning another State to appear before the Court without having previously, within reasonable limits, endeavoured to make it quite clear that a difference of views is in question which has not been capable of being otherwise overcome. But, in view of the wording of the article, the Court considers that it cannot require that the dispute should have manifested itself in a formal way; according to the Court's view, it should be sufficient if the two Governments have in fact shown themselves as having opposite views." Therefore, it is clear that the dispute should not be manifested in any formal way and all that is necessary is that two Governments should show themselves as holding opposite views. It has also been observed in the case of Certain German Interests in Upper Silesia (Series A, No. 6, p. 14): ".., a difference of opinion does exist as soon as one of the Governments concerned points out that the attitude adopted by the other conflicts with its own views". It is difficult to take the view that the attitude of India on the question of Portugal's claim with regard to a right of passage does not conflict with the view held by Portugal. I would therefore overrule this Objection.

***

Turning to the Fifth Objection, we heard very learned arguments as to the burden of proof. In my opinion, now that all the arguments are before the Court, the question of burden of proof loses much of its importance. But even so, I should like to Say a few words about it. It is always for a party which comes before a court or a tribunal to make out a prima facie case that the tribunal or court has jurisdiction. If that prima facie burden is discharged, it may be that the burden would shift on to the other party. When India objects to the jurisdiction of the Court on the ground that the subject-matter of the dispute falls exclusively within her domestic jurisdiction, it would not be correct to describe her attitude as it has been described by Counsel for Portugal as attempting to obstruct the normal course of statutory procedure. Undoubtedly the party coming to the Court has the right to have the benefit of the procedure [p174] provided by the Statute and the Rules for contentious matters. But that is so only on the assumption that the Court has jurisdiction. All that India has done is to draw the attention of the Court to the fact that, looking to her Declaration, the Court has no jurisdiction over this particular dispute. It is ultimately for the Court to decide the question of jurisdiction and it is only if the Court takes the view that the dispute falls within the ambit of India's Declaration that the matter can go on and the rules of statutory procedure can be given effect. It is equally incorrect to Say that inasmuch as India is relying on an exception contained in her Declaration which confers jurisdiction upon the Court the burden is upon her to make good that exception. India has accepted the compulsory jurisdiction with regard to certain categories of disputes, and the particular category with regard to matters falling exclusively within her domestic jurisdiction has been excluded. Therefore, it is for Portugal to establish that the dispute which she has brought before the Court falls within the scope of India's Declaration, and she can only establish that provided she satisfies the Court that the dispute is not exclusively within the domestic jurisdiction of India. The reservation made by India with regard to matters falling exclusively within her domestic jurisdiction is not an exception: it is an essential—an integral—part of her acceptance of the jurisdiction of the Court.

Coming to the substance of the matter, there are certain points which are beyond controversy. The first is that India has exclusive territorial sovereignty over the territory through which Portugal claims a right of passage or a right of transit. I think it is equally indisputable that prima facie a State enjoying territorial sovereignty has the right to allow or to prohibit a right of passage or transit through her territories to any other State or to permit a right of passage or transit under such terms and conditions as she thinks proper. It is true that even though a subject-matter may fall within the domestic jurisdiction of a State, the State may not have complete discretion with regard to it but its discretion may be controlled by any international obligation undertaken by it. If India has undertaken any international obligation, then the matter is no longer exclusively within her domestic jurisdiction. In other words, the matter would not be within the reserved domain but would be within the international domain into which the Court can enquire and determine what are her obligations according to international law.

It is true that in a large majority of cases, when an Objection is taken on the ground of domestic jurisdiction, the Court is inclined to join the Objection to the merits because the Court feels that it is impossible to arrive at a decision on this issue without investigating into the merits of the subject. But this is not always [p175] so. Otherwise it would never be open to a State to take a Preliminary Objection on this ground. The test has been clearly laid down by this Court as to what has to be established in order that the Court will not uphold the Objection at a preliminary stage but would stand it over to the hearing. Portugal must establish that the legal grounds relied upon by her justify a provisional conclusion that they are of juridical importance for a decision of the dispute according to international law. (See the classical statement of the law in the Nationality Decrees of Tunisia and Morocco, Series B, No. 4, p. 25.) To use simpler language, Portugal must show that her claim discloses an arguable cause of action under international law. Again, to use a different language, Portugal must show that the general rule that the subject-matter being within the domestic jurisdiction of India is within her discretion has been displaced by some rule of international law.

Now what is the subject-matter of the dispute between Portugal and India? I will not consider the various metamorphoses which Portugal's claim has undergone. But as finally indicated to this Court it is a right of transit between Daman and the Portuguese enclaves of Dadra and Nagar-Aveli in order to maintain communications between Daman and these two enclaves. The first striking thing about this alleged right is that it is completely indefinite and vague and, as was described by Counsel for India, "something undefined and disembodied, hard both to exercise and to enforce". When a State comes to this Court claiming a right against another State, it must be a right which should be enforceable. It must be a right which, if conceded by the Court, could be given effect to by the defendant State. No Court would give judgment which could not be carried out by the losing party. And the most surprising feature of Portugal's claim in this case is that if she were to succeed in her contentions, the judgment she would obtain from this Court could never be given effect to by India. If the Court were to declare that Portugal has a right of transit over Indian territory from Daman to the enclaves, it would be impossible for India to know what the nature, extent or content of that right would be. Would Portugal be entitled under this right to transport a whole army from Daman to the enclaves in order to suppress the revolt which has taken place there? Would she be able to transport tanks and artillery and all the paraphernalia of modern arms and armaments? Would she be able to fly aeroplanes over Indian territory, in order to bomb the enclaves in order to reduce them to subjection? Or would the right be confined to transit facilities to be given to diplomatic envoys or a small unit in order to maintain law and order in the enclaves ? These queries conclusively establish that Portugal has failed to formulate any legal right which she can assert against India. It is only by negotiations which may result in a treaty that the modalities of a right of transit can be settled between India and Portugal. But the Court cannot be called upon to draft a treaty between these [p176] two States. The Court can only pronounce upon an existing right, and if the right claimed is so insubstantial as to be incapable of being translated into something which is enforceable, the Court must come to the conclusion that the right claimed is not a legal right, much less a right recognized by international law or a right with regard to which India's discretion is controlled by any international obligation. It seems to me that on this ground alone India's Preliminary Objection must be sustained. It would be a sheer waste of time of this Court to join this issue to the merits when at the end of it the Court would have to come to the conclusion that no effective declaration can be made in favour of Portugal.

I have already pointed out that it is an elementary principle of international law that a State has exclusive competence within its own territory. This principle was emphatically pronounced by Chief Justice 3larshall in the Schooner Exchange case (1812, 7 Cranch 116): "The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source." It is not suggested by Portugal that India has ever given her consent to any limitation upon her territorial sovereignty over the territory in question. Although in her Memorial Portugal relied upon treaties between the Maratha rulers and herself, this contention was given up or at least not pressed at the hearing. As a matter of fact, the only treaty which deals with this subject at all is the Portuguese-Maratha Treaty of 1741, which, surprising as it may seem, provides expressly that soldiers of either power are not to enter the territory of the other without permission. If, therefore, India has not given her consent to any limitation upon her sovereignty, is there any other international obligation undertaken by India independently of any treaty or her consent ? I may observe in passing that Portugal concedes that the right of transit claimed by her, even though it may be without any immunity, does constitute a limitation upon India's sovereignty.

An international obligation may arise through local custom. If for a considerable period of time Portugal has been exercising this right, then the right may be upheld by international law. But in order that local custom should be established, it is not sufficient for Portugal merely to state that for a long period she maintained [p177] communications between Daman and the enclaves. She must go further and establish that the transit facilities that she had were enjoyed by her as a matter of right and not as a matter of grace or concession on the part of the Indian Government. And if one thing is clear beyond anything else from the record that we have before us, it is that throughout the period in question—from 1818 when the British appeared on the scene onwards—the facilities enjoyed by Portugal with regard to communicating with her enclaves were entirely at the discretion of the Indian Government and they were granted to Portugal as a matter of grace and indulgence. The Indian Government always reserved to itself the right to control the passage or transit facilities and even, if occasion arose, to prohibit it altogether. We have instances where a complete embargo was placed by the Indian Government on the carriage of certain goods. We have instances where no less a person than the Consul-General of Portugal reminded the Governor of Diu that authorization by the British authorities was indispensable before any Portuguese troops could cross British territory. Therefore, India is right when she says that a right of passage subject to be revoked in whole or in part by somebody else is not a right at all. I think that Portugal realizes the weakness of her case under this head and therefore what has been really urged before us by Portugal is that this right which she claims is warranted by general principles of international law. General principles of international law would be applicable if Portugal establishes a general custom in contradistinction to a local custom by which a State has the right to have access to enclaves by transit facilities being given to her in order to maintain communications between herself and her enclaves. Now the only general custom which is comparable to the question we have to consider which international law recognizes is the right of innocent passage in territorial seas and in maritime parts of international rivers, and also immunity given to diplomatic representatives when they are in transit between one State and another. No general custom has ever been established permitting a State to have access to her enclaves as of right. Portugal has relied on a learned study made by Professor Bauer of other enclaves, but this study only shows that the right of passage either arises out of treaty or out of local custom which is not applicable to the present case.

A principle of international law may also be imported from municipal law where the principle in municipal law is universally recognized and when that principle is not in conflict with any rule of international law itself; and the strongest reliance is placed by Portugal on the principle of municipal law which may be described as an easement of necessity. It is said that when you have an owner [p178] of land and his land is surrounded by the lands of other owners, the former has a right of access to a public road. This right of access arises out of necessity because but for this access the owner would be landlocked and would not be able to get out of his land, and therefore, in these circumstances, municipal law presupposes a right of way in the first owner over the lands of other owners. In my opinion, it would be extremely unsafe to draw an analogy between the rights of an owner and the obligations of other owners under municipal law and the rights and obligations of States under international law. There can be no comparison between private property and territorial sovereignty nor can there be any comparison between a citizen and a sovereign State. A sovereign State can pass any legislation affecting private property. It can compel the owner of land to cede any right to neighbouring owners. But that surely cannot be true of territorial sovereigns. Portugal cannot compel India to cede any right to her nor can India be placed under any obligation because Portugal is under a necessity to have access to her enclaves. Further, such a rule would obviously be in contradiction with the one undisputed well-established principle of international law, namely, territorial sovereignty, and therefore there is no scope for importing this principle of municipal law into the domain of international law.

Even in municipal law parties may agree as to the nature and extent of an easement, and if parties agree, then municipal law will not presume an easement of necessity. In this case, the relations between Portugal and the territorial sovereign of India clearly demonstrate that the conditions of Portugal's passage or transit over Indian territory were clearly settled and those conditions were that Portugal had no right to a passage or transit but she could only be afforded such facilities as the Indian Government, in its absolute discretion, thought fit to concede. Therefore, Portugal has failed to make out any case, let alone an arguable case, that India's discretion with regard to this particular subject-matter, which clearly falls within her own domestic jurisdiction, is controlled by any international obligation or that there is any rule of international law which takes this matter out of the reserved domain. Under the circumstances, I think that the Court should uphold this Objection raised by India and should decide that there is no necessity for further investigation of the facts and no useful purpose would be served by joining this Objection to the hearing.

***

I now come to the last and final Objection of India, which is Objection Six. It is with regard to ratione temporis, and India's contention is that the dispute brought before the Court arose [p179] prior to 5th February, 1930, with regard to situations or facts prior to that date and that therefore the dispute is clearly excluded from the competence of the Court by reason of her reservation in her Declaration of 28th February, 1940. It is clear from the jurisprudence of the Court that the only facts or situations which can be considered for the purpose of this Objection are those facts or situations which are the source or cause of the dispute. It is clear to my mind that the source of the dispute is the divergence of opinion between India and Portugal as to the legal implications of what transpired from 1812 onwards. The divergence is not only as to what happened in 1954. The divergence is as to the whole concatenation of facts and situations relied on by Portugal for asserting her right. Portugal says that India has acted contrary to her obligation to allow right of passage to Portugal and the breach of her obligation only took place in 1954, and therefore it is irrelevant to consider for the purpose of this Objection any facts or situations prior to 1954. This is clearly a fallacy. The obligation of India itself is in dispute and according to Portugal herself the obligation of India arises from facts and situations prior to 1930. The question that the Court has to consider is not whether there was any breach of Portugal's legal right by India in 1954. The question is whether Portugal had any legal right at all and Portugal can only establish the legal right by a body of evidence from 1818 to 1954 which forms a single and continuous whole. This is not a new dispute which Portugal seeks to bring before the Court. The conflict of views between the two Governments stretches back to 1818. It is a dispute as to the true result in law of facts and situations from 1818 onwards. In the Phosphates in Morocco case (P.C.I.J., Series A/B, No. 74, p. 24), the Court observed that the expression "facts and situations" was wide enough to embrace all the different facts capable of giving rise to a dispute, and a situation would include within its connotation not merely facts but also legal consequences resulting from a given set of facts. Again, in the Phosphates in Morocco case, dealing with the general object of the limitation ratione temporis, it is stated (p. 24): "... it was inserted with the object of depriving the acceptance of the compulsory jurisdiction of any retroactive effects, in order both to avoid, in general, a revival of old disputes, and to preclude the possibility of the submission to the Court by means of an application of situations or facts dating from a period when the State whose action was impugned was not in a position to foresee the legal proceedings to which these facts and situations might give rise". This observation in all its force applies to the present case. The Government of India was not in a position to foresee the legal proceedings to which the facts and situations from 1818 onwards might give rise. And the whole object of India's limitation contained in her Declaration is to prevent adjudication by the Court with regard to such [p180] facts and situations. In my opinion, there is no answer to India's Sixth Objection.

I should like to make one general observation with regard to the question of the jurisdiction of the Court. It has been said that a good judge extends his jurisdiction. This dictum may be true of a judge in a municipal court; it is certainly not true of the International Court. The very basis of the jurisdiction of this Court is the will of the State, and that will must clearly demonstrate that it has accepted the jurisdiction of the Court with regard to any dispute or category of disputes. Therefore, whereas a municipal court may liberally construe provisions of the law which confer jurisdiction upon it, the International Court on the other hand must strictly construe the provisions of the Statute and the Rules and the instruments executed by the States in order to determine whether the State objecting to its jurisdiction has in fact accepted it.

I would, therefore, dismiss Portugal's claim on the ground that the Court has no jurisdiction to entertain it.

(Signed) M. C. Chagla.

 
     

 

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