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[p.12]
The Court,
composed as above,
delivers the following Judgment:
By its Judgment of 26 November 1957, the Court rejected four of six
Preliminary Objections raised by the Government of India to the jurisdiction
of the Court to entertain an Application insti-[p 9]tuting proceedings by
the Government of Portugal, filed on 22 December 1955, and joined the Fifth
and the Sixth Objections to the merits.
At the same time the Court ordered the resumption of the proceedings on the
merits and fixed time-limits for the further pleadings. Requests for the
extension of these time-limits were granted by Orders of IO February 1958,
28 August 1958, 6 November 1958 and 17 January 1959, and the
Counter-Memorial, Reply and Rejoinder were filed within the time-limits so
fixed. The case became ready for hearing on the filing of the last pleading
on 5 February 1959.
The Court included on the Bench Mr. Mahomed Ali Currim Chagla, Ambassador of
India to the United States and Mexico and Minister of India to Cuba, and M.
Manuel Fernandes, Director-General of the Ministry of Justice of Portugal
and a member of the International Relations Section of the Upper House, who
had respectively been chosen by the Government of India and the Government
of Portugal, in accordance with Article 31, paragraph 3, of the Statute, to
sit as Judges ad hoc.
Public hearings were held on 21, 22, 23, 24, 25, 26, 28, 29 and 30
September, on 1, 2, 3, 5, 6, 9, 10, 12, 13, 14, 15, 16, 17, 19, 20, 21, 24,
26, 27, 28, 29, 30 and 31 October, and on 3, 4, 5 and 6 November 1959. At
these hearings the Court heard oral arguments and replies by M. Galvão
Telles, M. Bourquin, M. Braga da Cruz, M. Pierre Lalive d'Epinay and M.
Moreira da Silva Cunha, on behalf of the Government of Portugal, and by Shri
Setalvad, Me Rolin, Sir Frank Soskice, M. Guggenheim and Professor Waldock,
on behalf of the Government of India.
In the course of the written and oral proceedings the following Submissions
were presented 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 Damão (littoral Damão) 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. [p 10]
(c) To adjudge that India should put an immediate end to this de facto
situation by allowing Portugal to exercise the above-mentioned right of
passage in the conditions herein set out."
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;
(b) 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."
As final Submissions filed on 6 October 1959:
"1.—Submissions relating to the Claims of Portugal
Whereas the claim of the Portuguese Government is designed to secure: I.
Recognition of the right possessed by Portugal to pass over Indian territory
to the extent necessary for the exercise of its sovereignty over the
enclaves of Dadra and Nagar-Aveli; 2. A finding of India's failure to
respect the obligation binding upon it as the result of that right.
A. As to Portugal's right of transit
Whereas the territories of Dadra and Nagar-Aveli, which are undeniably under
the sovereignty of Portugal, are wholly enclaved within the territory of the
Union of India;
Whereas the exercise of Portuguese sovereignty over these territories would
therefore be impossible if Portugal were not assured of being able to
communicate with them by passing over the few kilometres of Indian territory
separating them one from another and from the coastal district of Daman;
Whereas the claim of India to possess in this connection a discretionary
power is manifestly incompatible with that necessity;
Whereas indeed such a claim would entitle India to oppose the communications
of Portugal with its enclaves on grounds of which [p 11] India would be the
sole judge and whenever India considered that its convenience or its
interests led it to adopt such an attitude;
Whereas the international legal system is essentially based upon mutual
respect of sovereignties;
Whereas the Union of India has unequivocally recognized the sovereignty of
Portugal over the two enclaves just as indeed it had been recognized by the
previous sovereigns of the Indian territory;
Whereas, by that recognition, the Union of India and its predecessors
admitted that the existence of the two Portuguese enclaves within Indian
territory was a part of the legal system and undertook to respect that
situation;
Whereas, in order to justify the discretionary power which the Union of
India claims to possess in respect of Portuguese transit, it would be
necessary to accept that, while recognizing the sovereignty of Portugal over
the enclaves, it tacitly reserved a right at its will to render impossible
the exercise of that sovereignty;
Whereas such a reservation cannot logically be admitted and would be
contrary to the elementary requirements of good faith;
Whereas the right claimed by Portugal is moreover confirmed by the
agreements which it formerly concluded with the Marathas, by local custom
and by general custom, as well as by the concordance of municipal legal
systems with respect to access to enclaved land;
Whereas, indeed, the above-mentioned agreements cannot be construed
otherwise than as granting to Portugal the right of passage necessary for
the exercise of the powers which those agreements conferred upon it in the
enclaves;
Whereas, furthermore, in the relations between Portugal and the successive
sovereigns of the territories adjoining the enclaves there was established
and consolidated in the course of nearly two centuries, an unbroken practice
in respect of the maintenance of the indispensable communications between
coastal Daman and the enclaves; and whereas that practice was based, on the
part of all concerned, on the conviction that what was involved was a legal
obligation (opinio juris sive necessitatis) ;
Whereas general custom likewise fully confirms the right claimed by
Portugal; whereas the practice of States reveals no disagreement in this'
connection; whereas, while. the conditions of the exercise of the right of
passage naturally Vary according to the circumstances, the right of the
sovereign of the enclave to have with the enclave the communications
necessary for the exercise of sovereignty is universally admitted, and
whereas it would be impossible to contend that that unanimity and uniformity
do not bear witness to a conviction of the existence of a legal duty (opinio
iuris sive necessitatis) ;
Whereas, lastly, the municipal laws of the civilized nations are unanimous
in recognizing that the holder of enclaved land has a right, for purposes of
access to it, to pass through adjoining land; whereas it is rare to find a
principle more clearly emerging from the universal practice of States in
foro domestico and more perfectly [p 12] meeting the requirements of Article
38, paragraph I (c), of the Statute of the Court;
Whereas each of the titles invoked by Portugal would in itself be sufficient
to justify the right which it is claiming and whereas these titles reinforce
each other and their coexistence reveals the solidity of their common basis;
Whereas Portugal is in no sense claiming a right of access to Indian
territory, but merely a right of transit, designed to assure the
communications between the enclaves themselves and between the enclaves and
the coastal district of Daman;
Whereas this right of transit is claimed only to the extent necessary for
the exercise of Portuguese sovereignty over the enclaves;
Whereas in claiming this right Portugal in no way disputes that sovereignty
over the territory, through which transit must be effected, belongs
exclusively to India; whereas it is in no way claiming to be entitled to
withdraw persons or goods in transit from the exercise of that sovereignty,
and does not directly or indirectly seek for them any immunity;
Whereas the transit forming the subject-matter of its claim therefore
remains subject to the regulation and control of India, which must exercise
these by taking, in good faith and on its own responsibility, the necessary
decisions;
Whereas Portugal merely asserts that the territorial competence of India is
not in this respect a discretionary competence, since India is obliged, on
its own responsibility, not to prevent the transit necessary for the
exercise of Portuguese sovereignty in the enclaves;
Whereas the Indian Government contends that the subject-matter of the
Portuguese claim is too vague for the Court to be able to pass upon it by
the application only of the legal rules enumerated in Article 38, paragraph
1, of the Statute; whereas, however, that contention fails to stand up to
examination ;
Whereas, indeed, the riles of international law referred to in paragraph I
of Article 38 are far from necessarily requiring greater precision than
those upon which the Portuguese Government relies, which are recalled above;
For these reasons,
May it please the Court
To adjudge and declare
that the right of passage between the enclaves of Dadra and Nagar-Aveli and
between these enclaves and the coastal district of Daman, as defined above,
is a right possessed by Portugal and which must be respected by India.
B. As to the failure of India to respect its obligation
Whereas the attitude of the Indian Government with regard to Portuguese
transit changed in the last months of the year 1953, after Portugal's
refusal to accede to the request for the cession of its territories in India
(Rejoinder, paragraph 417);[p 13]
Whereas this change was marked in the first instance by a series of
restrictions which, while not immediately rendering impossible the exercise
of Portuguese sovereignty in the enclaves, undeniably gravely impeded it and
were such as to be liable to paralyse it completely if exceptional events
occurred which obliged Portugal to take rapid measures to ensure the
maintenance of order at Dadra and Nagar-Aveli (Memorial, Annex 40) ;
Whereas the threat of action directed against the Portuguese territories of
India could not be a matter of which the Indian Government was unaware;
whereas the imminence of that action had moreover been publicly announced on
many occasions and in particular on 2 July 1954, in a manifesto, adopted at
Bombay by persons directing anti-Portuguese groups, which was reproduced in
the Indian Press (Indian Annex A. No. 7) ;
Whereas it was clearly incumbent upon the Indian Government to take the
measures which lay in its power to prevent the realization of such a design
(Judgment of the Court of 9 April 1949, in the Corfu Channel Case, Reports,
p. 22);
Whereas the Indian Government took no such measures but, on the contrary,
did not hesitate still further to weaken Portugal's capacity for resistance
against the danger which threatened it, by increasing the restrictions
placed upon transit (Note from the Consul-General of India at Goa, dated 17
July 1954, notifying the Portuguese Governor-General of a series of
immediate measures, including in particular a prohibition of the transport
of munitions and military equipment—Memorial, Annex 47);
Whereas a week elapsed between the occupation of Dadra (during the night
21/22 July) and the expedition against Nagar-Aveli which, having been begun
on 29 July, was completed only in August;
Whereas after the occupation of Dadra, there could be no doubt that a
similar action would be undertaken against Nagar-Aveli, the larger of the
two Portuguese enclaves;
Whereas moreover, as early as 23 July, the President of the so-called
'United Front of Goans' and leader of the expedition against Dadra, publicly
announced that this would take place and that the action would be begun as
soon as the necessary preparations were completed (Observations on the
Preliminary Objections, Annex 1, Appendix 2);
Whereas the Indian Government took no step to prevent that second
expedition;
Whereas, so far from thus performing its duty towards Portugal, it firmly
opposed all communications of Portugal with the enclaves;
Whereas, while the Parties are in disagreement on the question whether
communications between Daman and the enclaves had been completely cut before
the operation against Dadra, it is in any event certain that the isolation
of the two enclaves had become complete immediately after the occupation of
Dadra and before the expedition against Nagar-Aveli; [p 14]
Whereas, as from that time no further transit visa was granted, either to
Portuguese or to persons in the service of the Portuguese Government, for
the purpose of going to Dadra or to Nagar-Aveli (Counter-Memorial, paragraph
211);
Whereas on 24 July the Portuguese Government requested the necessary transit
facilities for the despatch of reinforcements to Dadra (Memorial, Annex 50);
whereas on 26 July, while confirming the earlier request, it asked that a
few delegates of the Governor of Daman (if necessary limited to three)
should be enabled to go to Nagar-Aveli, in order to enter into contact with
the population, examine the situation, and take the necessary measures on
the spot (Memorial, Annex 51);
Whereas, in a note of 28 July, the Government of India refused these two
requests (Memorial, Annex 52);
Whereas, at that time, the occupation of Nagar-Aveli existed only as a
threat and whereas it is consequently established that before any occupation
of the enclave, Portugal found itself completely cut off from the enclave as
a result exclusively of the will of India;
Whereas the attitude adopted by India is thus in two respects contrary to
the duty imposed upon it by international law, since instead of protecting
Portugal against the unlawful enterprise with which the latter was
threatened, it placed Portugal in a situation in which it was impossible for
that State to defend itself against that enterprise;
Whereas, since that date, the prohibitions imposed by India in respect of
Portuguese transit have been maintained without exception, thus enabling
those who profited by them to consolidate their position in the enclaves;
For these reasons,
May it please the Court
To adjudge and declare
that India has not complied with the obligations incumbent upon it by virtue
of Portugal's right of passage.
II.—Submissions relating to the various arguments propounded by the Indian
Government as to the effect of the present circumstances on the exercise of
the right of passage
Whereas India contends, in the event of the right of passage claimed by
Portugal being upheld by the Court, that that right cannot be exercised in
the present circumstances;
Whereas, if this contention were well-founded, its only effect could in any
case be to suspend temporarily, and to the extent necessary, the exercise of
the right of passage, without affecting the existence of that right itself;
Whereas it is clearly for India to establish the basis for its contention ;
Whereas India asserts that the present situation is characterized by a
general insurrection of the population of the enclaves; whereas, [p 15]
however, this interpretation of the facts, which is formally challenged by
Portugal, is far from finding confirmation in the evidence supplied by the
Indian Government and whereas this interpretation, on the contrary, runs
counter to a number of factors which render that interpretation improbable;
Whereas, furthermore, even if the existence of an insurrectional movement
were established, the legal consequences which India seeks to deduce
therefrom would nonetheless be devoid of foundation;
Whereas Portugal has never renounced its sovereignty over the enclaves and
whereas it was, from the very beginning, prevented from taking in the
enclaves the measures necessary for the restoration of order;
Whereas if Portugal's action has thus been paralysed it is because India has
opposed it by depriving the Portuguese authorities of all communication with
the enclaves;
Whereas India is therefore not entitled in any case to impair, in any form,
the right of sovereignty which belongs to Portugal alone ;
Whereas it is in the light of this fundamental observation that it is
necessary to examine the various arguments propounded by the Indian
Government in support of its contention that the exercise of the right of
passage ought to be suspended in the present circumstances ;
A. As to India's right to adopt an attitude of neutrality in the conflict
between the lawful Government and the alleged insurgents
Whereas there has been no recognition of belligerency in the present case;
Whereas, in the absence of such recognition, no obligation of neutrality is
incumbent upon third States, and whereas, if the latter are entitled in such
cases, in order to safeguard their interests, to take certain measures
analogous to those provided for by the regime of neutrality, what is then
involved is in any event only a right and not a legal duty ;
Whereas India could not avail itself of that right for the purpose of
evading the obligations binding upon it as a result of Portugal's right of
passage; and whereas any conflict between that right and those obligations
could only be resolved in favour of the obligations;
Whereas, moreover, the very concept of neutrality can clearly only apply in
a case of conflict between the lawful Government and the insurgents if the
State relying thereon is not involved in that conflict;
Whereas this is certainly not so in the present case, since the cause of the
so-called insurgents is merged with that of India, their efforts being
directed, through different means, to the achievement of one and the same
end, namely, the incorporation of the enclaves in the territory of the
Indian Union;
Whereas, while the sympathy felt by a State for one or the other of two
adversaries does not prevent that State from adopting an [p 16] attitude of
neutrality in the conflict between them, the position is not the same when
the design pursued by one of them forms an integral part of the policy
openly practised by the said State; whereas it is indeed impossible to be
neutral in one's own cause ;
Whereas India cannot therefore justify a suspension of the exercise of the
right of passage by the argument based on its alleged neutrality;
B. As to the application of the provisions of the United Nations Charter
relating to human rights and to the right of self-determination of peoples
Whereas in cases of insurrection the rights and obligations of foreign
States in relation to the lawful Government are governed by a body of rules
which form a part of general international law and whereas India is under a
further obligation in relation to Portugal, which is binding upon it as a
result of Portugal's right of passage;
Whereas India contends that the legal regime thus determined is modified by
Articles 1, 55, 56 and 62 of the United Nations Charter, in the sense that
these Articles lay upon it an obligation to 'abstain from action which is
diametrically opposed to the whole purpose and spirit of those Articles'
(Rejoinder, paragraph 640) ;
Whereas the terms in which this assertion is couched disclose the
uncertainty felt by India itself with regard to the exact scope of its
argument ;
Whereas India recognizes moreover that the principles of the Charter to
which it has referred can be regarded as ethical principles and not as legal
principles and whereas India seeks, on the other hand, to disregard, in so
far as these principles are concerned, the provisions of Article 38,
paragraph 1, of the Statute of the Court (Rejoinder, paragraph 641);
Whereas these considerations would, if necessary, suffice to dispose of its
contention, since the Parties to the present dispute have only accepted the
compulsory jurisdiction of the Court subject to the conditions laid down in
the Statute of the Court;
Whereas, however, the provisions of Articles 1, 55, 56 and 62 of the United
Nations Charter are not at all involved in the dispute now before the Court;
Whereas while Portugal has a legitimate desire to restore the order which
has been disturbed by the violent action of hostile elements which
penetrated into the enclaves in 1954, it does not propose in any way to
disregard the duties laid upon it by the United Nations Charter;
Whereas on the other hand, the Indian Government, whilst relying on these
Articles in refusing to allow Portugal to exercise its right of passage,
does not hesitate to declare that, in the event of the populations concerned
opting in favour of the maintenance of Portuguese sovereignty, India would
not be disposed to tolerate this (declaration made on 6 September 1955 by
the Prime Minister of India before the Rajya Sabha—Observations on the
Preliminary Objections, Annex 1, Appendix 4, p. 16), which constitutes the
very negation of the right of self-determination of peoples ;[p 17]
C. As to the argument that the existence in the enclaves of a provisional de
facto local government, which is not represented before the Court, debars
the Court from adjudicating, in the present circumstances, on the Portuguese
claim
Whereas this argument can find no basis either in the Statute of the Court
or in the declarations by which the Parties have accepted its compulsory
jurisdiction; whereas these declarations contain a general undertaking,
accompanied by certain reservations which are exclusively confined to those
expressed, none of which relates to the contingency now contemplated by
India;
Whereas, nevertheless, to justify its contention, India invokes the
principle applied by the Court in its Judgment of 15 June 1954 in the case
concerning Monetary Gold removed from Rome;
Whereas this is the principle which makes the jurisdiction of the Court
dependent upon the consent of the States concerned; whereas this is indeed a
fundamental principle which is manifestly embodied in the Statute; whereas,
however, this principle is entirely irrelevant to the present case;
Whereas the Court is not called upon to adjudicate upon an international
dispute to which the alleged de facto government of the enclaves is a party
and in respect of which the Court cannot therefore exercise jurisdiction
without that de facto government's consent;
Whereas it is not sufficient, to prevent the Court from exercising
jurisdiction, that the dispute before it should interest a third party and
that that third party should not be represented before the Court, even if
that third party be a State;
Whereas, not only can the alleged de facto government of the enclaves not be
regarded on any ground as the organ of a State but it does not even possess
international legal personality;
Whereas it constitutes no more than a provisional de facto administration ;
and whereas such an administration possesses no legal personality on the
international plane so long as that administration has not been recognized;
Whereas, furthermore, the legal personality acquired by it in the event of
recognition exists only to the extent that such recognition has granted it ;
Whereas the Government of India purports to have recognized the present
administration of the enclaves as a provisional de facto administration, but
whereas this declaration, made for the first time in the Counter-Memorial,
is incompatible with the declaration which appears at paragraph 16 of the
Preliminary Objections to the effect that the Government of India had not up
to that time had any relations with that administration; whereas the alleged
recognition was therefore subsequent to the filing of the Preliminary
Objections (April 1957); whereas it was even subsequent to the oral argument
which took place before the Court on those Preliminary Objections from 23
September to II October 1957; [p 18]
Whereas this alleged recognition would be an implicit recognition; whereas
it would only have been given external manifestation—apart from the
assertions made in the Counter-Memorial and in the Rejoinder—by contacts
with local officials with regard to such day-to-day matters of
administration as police, posts, transport, etc.—which contacts are
expressed to have been limited to the indispensable minimum
(Counter-Memorial, paragraph 353);
Whereas it is difficult to confer upon such contacts the status of
recognition;
Whereas that recognition, on the assumption that it was given, could only
have an extremely limited legal scope; whereas its effects would be limited
to India's relations with the local administration in the matters for which
these contacts were made; whereas such recognition can certainly not be
invoked as against Portugal and cannot in any way affect either Portugal's
right of passage or the jurisdiction of the Court in the dispute which has
been regularly brought before it;
Whereas, furthermore, this alleged recognition would only follow from a
change in India's intentions after the argument of the Preliminary
Objections, and whereas a party to a dispute is certainly not entitled to
modify during the course of the proceedings and to the detriment of the
other party, by a mere manifestation of will, the conditions in which the
dispute presents itself;
Whereas therefore viewed from any angle, the argument that the Court is
prevented in the present case from discharging the judicial function
conferred upon it, on the pretext that the Court is not open to the
provisional de facto administration of the enclaves, must be rejected as
devoid of foundation;
D. As to the argument that the exercise of the right of passage by Portugal
would involve, under the present circumstances, grave dangers to India's
public order and that India is therefore entitled to oppose it
Whereas this argument is independent of the assertion that the events which
occurred in the enclaves amounted to an insurrection of the local
population; whereas this argument is based solely on India's right to
preserve its internal order and on the existence of a danger which is said
seriously to threaten that order;
Whereas, as appears from paragraph 388 of the Reply, if by reason of
exceptional circumstances at any given moment the passage of Portuguese
armed forces over the few kilometres of road which lead from Daman to the
enclaves should really appear likely seriously to disturb the public order
of India, by provoking acts of violence on its territory, Portugal would
agree that passage should be temporarily suspended, to the extent necessary
for the preservation of India's public order;
Whereas the issue is therefore whether the aforementioned conditions which
must be satisfied for a suspension of the passage of armed forces have in
fact been fulfilled; [p 19]
Whereas India confines itself to the expression in this connection of
certain apprehensions the basis for which has not been established;
Whereas India invokes the risk that the so-called insurgents might push back
on to its territory any elements of the Portuguese public forces sent to the
enclaves to restore order there;
Whereas, however, India can easily protect itself against this contingency;
whereas it undeniably has at its disposal the means to do so; whereas its
internal order could only be exposed to the danger it refers to if it
refrained from utilizing these means;
Whereas it is the more difficult to agree, in these circumstances, that its
argument has any validity, inasmuch as the prolongation of the prohibition
of passage would have for Portugal consequences of obvious gravity which
Portugal could not possibly avoid;
Whereas, if the Court should nevertheless be of opinion that, in the present
circumstances, the passage of Portuguese armed forces should be suspended,
as stated above, by reason of the danger it would represent for the internal
order of India, it is obvious that this temporary suspension ought to end as
soon as the danger justifying that suspension disappears;
Whereas, for its part, India would naturally have the duty not to take any
measure which might consolidate the position of the adversaries of the
lawful Government in the enclaves; whereas it is indeed inconceivable that
India should take advantage of the suspension in order to further the
aggravation or prolongation of the circumstances relied upon in support of
that claim;
For these reasons,
May it please the Court
(a) to hold that the arguments of India set out above under A, B and C are
without foundation ;
(b) as to the argument of India set out above under D:
1. If the Court is of opinion that the above-mentioned conditions which must
be satisfied to justify the suspension of the passage of Portuguese armed
forces are not fulfilled,
To adjudge and declare
That India must end the measures by which it opposes the exercise of the
right of passage of Portugal;
2. If the Court is of opinion that the above-mentioned conditions which must
be satisfied to justify the suspension of the passage of Portuguese armed
forces are fulfilled,
To adjudge and declare
That the said passage shall be temporarily suspended; but that this
suspension shall end as soon as the course of events discloses that the
justification for the suspension has disappeared;
That during such suspension, India must abstain from any measure which might
strengthen the position of the adversaries of the lawful Government in the
enclaves and thus provoke the aggravation or [p 20]
prolongation of the circumstances relied upon in support of that suspension;
That there is no legitimate reason entitling India to ask that the other
forms of the exercise of the right of passage should likewise be suspended.
III.—Submissions relating to the Preliminary Objections of India
A. As to the fifth objection
Whereas the fifth of the Preliminary Objections raised by India was designed
to secure a finding by the Court that the dispute is not within the Court's
jurisdiction on the ground that it relates to a question which, according to
international law, falls exclusively within the jurisdiction of India, and
that the Declaration of 28 February 1940, by which India accepted the
compulsory jurisdiction of the Court, excludes such disputes from the
Court's jurisdiction;
Whereas, by its Judgment of 26 November 1957, the Court decided to join this
objection to the merits;
Whereas it is clear from the arguments that Portugal's claim is based on
international law; whereas all the titles relied upon in respect of that
claim fall within the domain of international law; and whereas the validity
of these titles has been fully established;
Whereas the question involved in this dispute is therefore certainly not a
question which, according to international law, falls within the exclusive
jurisdiction of India;
For these reasons,
May it please the Court
To dismiss the Objection.
B. As to the sixth objection
Whereas the sixth of the Preliminary Objections raised by India was designed
to secure a finding by the Court that the dispute does not fall within the
jurisdiction of the Court, by virtue of the reservation ratione temporis in
the Declaration of 28 February 1940, under which India accepted the
jurisdiction of the Court in respect of disputes 'arising after 5 February
1930, with regard to situations or facts subsequent to that date';
Whereas, by its Judgment of 26 November 1957, the Court decided to join this
objection to the merits;
Whereas in the Preliminary Objections of the Indian Government this
objection was solely based on the second part of the aforementioned
reservation, that Government recognizing that the dispute was subsequent to
5 February 1930, whilst contending that it related to situations or facts
prior to that date;
Whereas it was only in the course of the oral argument on the Preliminary
Objections, in the Oral Reply of the Attorney-General of India (Oral
Proceedings, pp. 213-221) that an objection based on the first part of the
aforementioned reservation was, raised, i.e. an objection based on the
ground that the dispute allegedly arose before 5 February 1930; [p 21]
Whereas, quite apart from this consideration, neither the objection based on
the first part of the reservation nor the objection based on the second part
of the reservation, can be accepted;
Whereas the dispute referred to the Court is in fact subsequent to 5
February 1930, since the dispute dates from 1954, the year in which the
divergence of views, which constitutes the dispute, arose between the
Portuguese Government and the Indian Government;
Whereas furthermore the situations or facts in respect of which the dispute
arose are likewise subsequent to 5 February 1930, since they also date from
1954;
Whereas these situations or facts are really nothing but those giving rise
to the dispute and, whereas one must regard as such the situations or facts
imputed by the applicant State to the respondent State as unlawful, i.e. as
constituting violations of the respondent State's international obligations;
Whereas the situations or facts which Portugal imputes to the Indian Union
as unlawful also date from 1954, as has already been pointed out;
For these reasons,
May it please the Court
To dismiss the Objection."
Out behalf of the Government of India,
in the Counter-Memorial:
"May it please the Court to declare that it has no jurisdiction to decide on
the claim presented by the Portuguese Government, and, in the alternative,
to declare the claim ill-founded."
As final Submissions filed on 21 October 1959:
"Having regard to the Submissions presented at the hearing of 6 October 1959
by the Agent for Portugal,
Whereas, by its Judgment of 26 November 1957, the Court joined to the merits
the consideration of the Fifth and Sixth Preliminary Objections;
1.—As to the Fifth Objection
Whereas, if its examination of the merits should lead the Court to a finding
that Portugal has not established the existence of the titles which she has
invoked, and that these titles must accordingly be regarded as non-existent,
it must follow that the question of the grant or refusal of the passage
claimed over Indian territory falls exclusively within the domestic
jurisdiction of India and that the dispute is outside the jurisdiction of
the Court;
II.—As to the Sixth Objection
Whereas the Indian declaration of acceptance of the compulsory jurisdiction
expressly provides that only disputes arising after 5 February 1930 and with
regard to situations or facts subsequent to the same date may be submitted
to the jurisdiction of the Court; [p 22]
Whereas, according to the Submissions filed by the Agent for Portugal on 6
October 1959, and the explanations given in the course of the Oral
Proceedings by Counsel for Portugal the object of the Portuguese claim is
(1) recognition of the right which Portugal claims to possess to pass over
Indian territory to the extent necessary for the exercise of her sovereignty
over the enclaves of Dadra and Nagar-Aveli (2) a finding of India's failure
to respect the obligation binding upon her as the result of that alleged
right (3) an injunction to India that she should re-establish the right of
passage or, in the alternative, in the event of its being found that the
exercise of that right was rightfully suspended in respect of Portuguese
armed forces, to limit the suspension in its scope and in its duration while
refraining from consolidating the situation justifying that suspension;
Whereas the above-mentioned second and third objects of the claim are
manifestly ancillary to the first, their consideration being subject to the
existence of the right of passage defined under (1);
Whereas claims relating to the passage were raised by Portugal before 5
February 1930 and whereas the situation to which the titles now invoked by
Portugal refer was repeatedly the subject of difficulties prior to 5
February 1930;
Whereas the dispute referred to the Court by Portugal accordingly fails to
satisfy either of the two time conditions to which the Indian Union made its
acceptance of the compulsory jurisdiction of the Court subject;
III.—On the merits
A. As to the right claimed and its basis
Whereas the right claimed by Portugal has been presented as a right of
passage relating to private persons and to goods as well as to official
organs and armed troops, limited to the needs of the exercise of Portuguese
sovereignty and subject to the restrictions and regulations prescribed by
the Indian Union, the sovereign in the intermediate territory, without any
claim by Portugal to any immunity;
Whereas the right as thus defined and the correlative obligation contain
such contradiction and lack of precision that their judicial recognition
would appear to be impossible;
whereas in particular the concept of the essential needs for the maintenance
of Portuguese sovereignty does not provide the Parties with an objective
criterion enabling them to arrive at a common appreciation or making it
possible for some arbitral or judicial body to decide as between them in the
event of a divergence of opinion ;
whereas moreover it is difficult to see how such a concept of the
requirements of sovereignty could lead to any right of passage for private
persons and goods in whose favour the enjoyment of the right is however
still claimed although the exercise of Portuguese sovereignty in the
enclaves is manifestly paralysed;
whereas similarly the statement by Portugal that the right of passage
claimed includes no immunity is incompatible with the [p 23] character of a
State organ which necessarily attaches to armed military forces under
command passing through foreign territory;
whereas it is unimaginable that a right of passage can be recognized
generally, even within the bits required by the needs of the applicant
State, without any regard to the objections of the State through which
passage is to be effected; whereas in the third part of her Submissions
Portugal indeed recognizes that the interests of the State through which
passage is to be effected entitle it sometimes to refuse to permit the
exercise of the right claimed; whereas there is not however any trace of any
such limitation in the definition proposed which must accordingly be
rejected as unacceptable also on that ground;
Whereas it is self-evident that' a right which is so contradictory and the
content of which is so indeterminate and indeterminable can find no basis in
any of the general or particular titles alleged by Portugal, that is to say,
either in general custom, or in the principles of international law which
can be derived therefrom, or in the general principles of law recognized by
civilized States, or in particular agreements or in local custom which. if
it exists. must be assimilated tg the particular agreements;
Whereas reliance has wrongly been placed upon the respect due to the
sovereignty of Portugal in the enclaves;
whereas the sovereignty invoked is essentially territorial and does not in
itself involve any right whatsoever upon Indian territory ;
Whereas Portugal is equally unfounded in her reliance upon recognition of
Portuguese sovereignty in the enclaves, either contained in a treaty of 1779
negotiated by Portugal with the Maratha Empire, or flowing from the attitude
of the British or Indian Governments between 1818 and 1954;
Whereas the negotiations of 1779 never resulted in an agreement and whereas
the draft treaty in contemplation in any event involved no transfer of
sovereignty;
Whereas if it is true that sovereignty over the enclaves was subsequently
usurped by Portugal, this could not give rise to any right of passage;
Whereas even if this were not the case it has been clearly established in
the written proceedings that recognition of the fact of Portuguese
sovereignty was never at any time accompanied by recognition of any
obligations whatsoever with regard to the alleged right of passage;
whereas from 1818 to 1954 the Governments of Great Britain or of India
granted or refused passage as they saw fit;
whereas the particular agreements concluded on this subject with Portugal in
1819, 1844, 1861, 1879, 1893, 1913, 1920 and 1940 were concluded for a short
period, or were revocable, their content being always limited and very far
removed from the definition of the right now proposed by Portugal ; [p 24]
whereas it accordingly appears that apart from the brief periods during
which these agreements were in force Great Britain and India retained in
respect of passage a discretionary competence without any sort of
limitation;
whereas the course thus adopted by Great Britain and by India in no way
diverged from the usual practice followed by the Governments of other States
having foreign enclaves within their territory;
Whereas, far from revealing the existence of a general customary rule in
conformity with the claims of Portugal relating to a right of passage, an
examination of the practice followed, and in particular of the agreements
which have been concluded on this subject, establishes the categorical
refusal of States to be bound by formal undertakings either with regard to
the transit of goods where the enclave is included within the customs regime
of the State through which passage is to be effected, or with regard to the
transit of armed forces at least where those forces exceed a given number,
or where the passage is designed to prevent or to put down political, social
or economic disturbances.
B. As to the violation of the alleged right in July- August 1954
Whereas the non-existence of the right claimed is sufficient in law to
dispose of the complaint of its violation ;
Whereas the Indian Union however desires indignantly to reject the
accusation of having used its discretionary competence, in respect of the
passage of Portuguese troops, to assist the overthrowing of Portuguese power
in pursuance of annexationist designs ;
Whereas the Indian Government and people have doubtless never concealed
their desire that the Goans should be allowed to join the Union of
Independent India to which they are attached ethnically and culturally,
whereas however the Indian Government has always said with equal force that
that reunion must be achieved without violence; whereas it is difficult to
see why any different attitude should have been adopted with regard to the
enclaves which are of negligible political and economic importance to India;
Whereas the restrictions imposed by India at the end of 1953 and the
beginning of 1954 on the passage to the enclaves of Portuguese agents are
fully explicable on the ground of the determination of the Government of New
Delhi to answer the restrictive measures adopted by the Goan administration
in respect of Indian nationals, by its concern not to assist the extension
to the enclaves of the reign of terror brought into being in Goa by the
Portuguese authorities to prevent and put down by violence any manifestation
of Indian national sentiment, and by its decision to forbid passage over
Indian territory to Portuguese officials who had demonstrated their contempt
for the Asians;
Whereas Portugal likewise wrongly maintains that the Government of India
must have foreseen the coup which occurred at Dadra on 22 July 1954; [p 25]
whereas the manifesto of the Goan National Movement of 2 July which has been
relied upon does not in fact contain the slightest indication to that effect
and whereas the Portuguese authorities refrained from communicating to India
any information gathered on this point by their intelligence services with
regard to what was being prepared;
Whereas the liberation of Dadra was a matter of a few minutes only, whereas
quite naturally it immediately gave rise to a great stirring of the people
in the neighbouring enclave of Nagar-Aveli, but whereas in that enclave the
insurgents encountered scarcely any resistance, the Portuguese authorities
having decided on I August to evacuate the capital, Silvassa, and to
withdraw into Indian territory 'to avoid an encounter';
Whereas once the liberation movement had been begun at Dadra, the Indian
Union was entitled, both in accordance with the principle of international
law of non-intervention and out of regard for the right of
self-determination of peoples recognized by the Charter, to refuse the
Portuguese authorities authorization for the passage of reinforcements
assuming that any had been available;
Whereas finally it is not reasonably possible to describe the events which
occurred in the enclaves as 'invasion' or foreign 'occupation', when the few
individuals, who in fact came from outside to Dadra and Nagar-Aveli to
support the liberation movement, were for the most part Goans, that is, the
compatriots and the kith of the inhabitants, whereas the majority of these
left the enclaves a few days after having entered them, whereas the
independent administration which was then constituted and which has since
functioned, is in large part composed of people born in the enclaves or who
have for a long time resided there, and whereas the sympathies of the
inhabitants for the nationalist movement had as early as 1931 and on diverse
occasions since then been noted by the Portuguese administrators;
Whereas it follows from the considerations set out above that no complaint
can be made against the Indian Union on the ground of the use it made of its
discretionary competence in refusing passage over its territory to the
agents of the Portuguese State in July 1954.
C. As to the claim for an injunction
Whereas this claim implies that since July/August 1954 the Indian Union has
violated its international obligations relating to transit by refusing
Portugal permission for the passage over Indian territory of the armed
forces necessary to re-establish her authority in the enclaves;
Whereas the reasons indicated above in refutation of the accusation of
violation in respect of the period July/August 1954 are sufficient to
dispose of the complaint formulated with regard to the subsequent period;
Whereas moreover even if obligations with regard to passage had in the past
been binding upon India, they should be regarded as having lapsed as a
result of the change which has occurred in the [p 26] essential
circumstances, in particular by reason of the formation at Silvassa of an
independent local administration;
Whereas the existence and the stabilization of that administration can only
have served to reinforce the propriety of the attitude of non-intervention
adopted by India in the conflict between that administration and Portugal;
Whereas this fact is equally one which must hold the attention of the Court
whose decision would run counter to the interests of justice if, without a
hearing, it were to condemn to extinction the independent entity which has
been constituted;
Whereas finally there can be no doubt that a restoration of the Portuguese
power in the enclaves brought about by force of arms would encounter
desperate resistance on the part of a population rejoicing in the political,
economic, social and cultural progress which it has enjoyed for five years;
whereas the fighting to which such resistance would give rise could not fail
to extend to the surrounding Indian territory, the population of which would
feel solidarity with the resistance and whereas this would result in an
undoubted threat to the internal order and external peace of the Indian
Union;
Whereas this situation should in itself suffice according to the Submissions
of Portugal themselves to bring about the rejection of the claim for an
injunction;
D. As to the alternative claim for an injunction
Whereas in the absence of the re-establishment of the alleged right of
passage relating to armed forces, Portugal claims:
(a) that the suspension of the alleged right be declared to be limited to
the continuation of the situation justifying it;
(b) that India be prohibited from taking any action which might strengthen
the position of the adversaries of the Portuguese regime in the enclaves,
(c) that the suspension of the alleged right of passage be limited to the
armed forces,
Whereas none of these claims would appear to be justified;
(a) whereas in the event of the right of passage being recognized by the
Court which should at the same time declare its exercise to be suspended, it
is difficult to see any point in accepting the temporary character of that
situation since it would appear to be impossible to foresee and to define
the various events capable of putting an end to it;
(b) whereas it would likewise appear to be inadmissible to seek by means of
a judicial decision to prevent in perpetuity any evolution of the situation
in a sense unfavourable to the restoration of the Portuguese regime or to
regulate the relationships which the Indian Union inevitably has with the
population and the administration of enclaves integrated in its economic
system ;
(c) whereas finally the concern manifested by Portugal with regard to the
passage of private persons and of goods—more than ever unconnected with the
exercise of a sovereignty recognized to be [p 27] paralysed—would appear to
be all the less justified inasmuch as the regulation of the passage of goods
has not undergone any change and that the passage of private persons
encounters no impediment save those brought about by the Portuguese
authorities at Daman.
For these reasons and ail others advanced in the pleadings and oral
arguments submitted by the Indian Union
May it please the Court
To hold that it is without jurisdiction
In the alternative
to hold that the claim is unfounded."
***
The present dispute was referred to the Court by an Application filed on 22
December 1955.
In that Application the Government of the Portuguese Republic states that
the territory of Portugal in the Indian Peninsula is made up of the three
districts of Goa, Daman and Diu. It adds that the district of Daman
comprises, in addition to its littoral territory, two parcels of territory
completely surrounded by the territory of India which constitute enclaves:
Dadra and Nagar-Aveli. It is in respect of the communications between these
enclaves and Daman and between each other that the question arises of a
right of passage in favour of Portugal through Indian territory, and of a
correlative obligation binding upon India. The Application states that in
July 1954, contrary to the practice hitherto followed, the Government of
India, in pursuance of what the Application calls "the open campaign which
it has been carrying on since 1950 for the annexation of Portuguese
territories", prevented Portugal from exercising this right of passage. This
denial by India having been maintained, it has followed, according to the
Application, that the enclaves of Dadra and Nagar-Aveli have been completely
cut off from the rest of the Portuguese territory, the Portuguese
authorities thus being placed in a position in which it became impossible
for them to exercise Portuguese rights of sovereignty there.
It is in that situation, and in order to secure a remedy therefor, that
Portugal has referred the matter to the Court.
***
The questions submitted to the Court have been argued at length by the
Parties in the course of the proceedings. Their final formulation is to be
found in the Submissions by which each of the Parties has stated what it
asks the Court to adjudge and declare.
Since Portugal is the Applicant, it is in its Submissions that the
formulation of the claims on which the Court must adjudicate is to be
sought. Furthermore, subject to what will be said with regard [p 28] to the
jurisdiction of the Court, India has confined itself in its Submissions on
the merits to adopting the negative position of requesting the Court "to
hold that the claim is unfounded".
***
The Submissions presented by Portugal in the Application request the Court
in the first place "To recognize and declare that Portugal is the holder or
beneficiary of a right of passage", the characteristics of which are set
forth. In the course of the proceedings stress was laid by both Parties on
the importance of this claim and the answer to be given to it.
This claim was repeated in the Submissions filed on 6 October 1959 on behalf
of the Government of
Portugal. The Court was there asked:
"To adjudge and declare
That the right of passage between the enclaves of Dadra and Nagar-Aveli and
between these enclaves and the coastal district of Daman, as defined above,
is a right possessed by Portugal and which must be respected by India."
Thus formulated, the claim reveals both the right claimed by Portugal and
the correlative obligation binding upon India.
But, as thus formulated, the claim requires clarification of its
subject-matter, since it contains a reference to the grounds relied upon in
its support. It is clear from this reference that the right of passage is
invoked by Portugal "only to the extent necessary for the exercise of
Portuguese sovereignty over the enclaves". It is not contended that passage
is accompanied by any immunity in favour of those who effect it. It is made
clear that such passage remains subject to the regulation and control of
India, which must be exercised in good faith, India being under an
obligation not to prevent the transit necessary for the exercise of
Portuguese sovereignty over the enclaves.
The Court must adjudicate upon the claim as thus presented, stating whether
the right invoked by Portugal is or is not a right possessed by that State.
But with reference to what date must the Court ascertain whether the right
invoked by Portugal exists or does not exist ?
If the date selected is the eve of the events of 1954 which brought about a
new situation which has since prevented the exercise by Portugal of its
authority in the enclaves without, however, having substituted therefor that
of India, the factors relevant for the guidance of the Court in its decision
will be those existing on the eve of those events. If, on the other hand,
the issue is viewed as it stands at the date of the present Judgment, it
will be necessary to take into account—whatever may be their weight —the
argu-[p 29]ments of India designed to establish that the right of passage,
assuming it to have existed previously, came to an end as a result of the
events of 1954 and has lapsed in the present circumstances.
Portugal has not indicated which date is the relevant one in this connection
and, having regard to its silence on the point, the inclination might be to
regard as the relevant date that of the Application or that of the Judgment.
But this would fail to take into account the circumstances in which the
question of the existence of a right of passage was put to the Court.
That question was put to the Court in respect of the dispute which has
arisen between India and Portugal with regard to obstacles placed by India
in the way of passage. Portugal—and this was the immediate purpose of the
Application—sought a finding as to the character, in its opinion unlawful,
of these obstacles. It was in support of this contention that it invoked its
right of passage and asked the Court to declare the existence of that right.
This being so, it is the eve of the creation of these obstacles that must be
selected as the standpoint from which to ascertain whether or not Portugal
possessed such a right.
This will leave open the arguments of India regarding the subsequent lapse
of the right of passage and of the correlative obligation. It is in
connection with what may have to be decided, not as to the past, but as to
the present and the future, that these arguments may, if such questions
arise, be taken into consideration.
Accordingly the first question with regard to which the Submissions of
Portugal call upon the Court to decide is whether, on the eve of the events
which occurred at Dadra and at Nagar-Aveli in 1954, Portugal had a right of
passage over the territory of India to the extent necessary for the exercise
of Portuguese sovereignty over the enclaves, which right was subject to the
regulation and control of India.
Portugal asks the Court to hold that it had this right. India asks it to
hold that the claim is unfounded.
***
To this first claim Portugal adds two others, though these are conditional
upon a reply, wholly or partly favourable, to the first claim, and will lose
their purpose if the right alleged is not recognized. The formulation of
these two claims, also, is to be sought in the Submissions filed on behalf
of Portugal on 6 October 1959.
Portugal asks the Court in the first place:
"To adjudge and declare
That India has not complied with the obligations incumbent upon it by virtue
of Portugal's right of passage."
This claim specifically refers to the obligations devolving upon India as a
result of Portugal's right of passage, and for this reason [p 30] it must be
considered and decided by the Court, if the Court recognizes the said right
of passage.
However, the grounds set forth in support of this claim include certain
considerations which go beyond its subject-matter. Reference is made to the
circumstances in which the alleged breach is said to have occurred. Mention
is made of the events leading to the overthrow of Portuguese authority at
Dadra and Nagar-Aveli in July and August 1954 brought about, in particular,
by the action of elements coming from Indian territory. In this connection
allusion is made to India's failure to respect the obligation, said to be
binding on it under general international law, to adopt suitable measures to
prevent the incursion of subversive elements into the territory of another
State. With regard to the events of July 1954, it is stated among the
grounds in support of the Portuguese Submissions that "the threat of action
directed against the Portuguese territories of India could not be a matter
of which the Indian Government was unaware"; that "it was clearly incumbent
upon the Indian Government to take the measures which lay in its power to
prevent the realization of such a design"; that "the Indian Government took
no such measures"; that, following the public announcement of an expedition
by the "United Front of Goans" against Nagar-Aveli, "the Indian Government
took no step to prevent that second expedition"; and that, "so far from thus
performing its duty towards Portugal, it firmly opposed all communications
of Portugal with the enclaves". All this is stated, not merely to
demonstrate in what circumstances India impeded or prohibited passage by
Portugal, but also to demonstrate that, as well as failing to respect its
special obligation in the matter of passage, India was in breach of a
general obligation under international law; and the grounds in support of
the Submissions make this clear by adding, after the description of the
events of that time, that "the attitude adopted by India is thus in two
respects contrary to the duty imposed upon it by international law, since
instead of protecting Portugal against the unlawful enterprise with which
the latter was threatened, it placed Portugal in a situation in which it was
impossible for that State to defend itself against that enterprise".
In terms much more definite even than the above, Counsel for Portugal,
speaking at the hearing of 29 October 1959, accused India of failure to
fulfil its international obligations by tolerating on its territory
enterprises directed against Portuguese authority at Dadra, and later at
Nagar-Aveli. India denied this and, more particularly in the grounds set
forth in answer to Portugal's second Submission, "indignantly" rejects the
accusation thus brought against it, and explains what course it actually
followed.
The Court is not required to deal with this issue, for it has not been
asked, either in the Application or in the final Submissions of the Parties,
to decide whether or not India's attitude towards those who instigated and
brought about the events which occurred in [p 31] 1954 at Dadra and
Nagar-Aveli constituted a breach of its obligations under international law.
The Court is only asked to adjudicate upon the compatibility of India's
action with the obligations resulting from Portugal's right of passage. It
is not asked to determine whether India's conduct was compatible with any
other obligation alleged to be imposed upon it by international law.
This limitation derives from the very terms of the second claim advanced by
Portugal.
***
After setting forth these two claims, which refer, implicitly or explicitly,
to the past—that is, to the legal situation as it existed in 1954 and to
India's actions at that time—Portugal's Submissions follow the course
adopted in the Application and the Memorial, but with greater complexity;
they turn to the present and the future, requesting the Court to determine
certain measures to be adopted in the event of a decision recognizing the
right claimed by Portugal and finding that India has committed a breach of
its correlative obligation. In this connection the Application and the
Memorial had merely sought respectively a decision by the Court, and a call
by the Court to India, designed to secure the termination of the unlawful
state of affairs resulting from India's alleged infringement of Portugal's
right. In the Submissions filed on behalf of the Government of Portugal on 6
October 1959, this claim is put forward in an alternative form depending
upon whether or not the Court holds that there should be a temporary
suspension of the right of passage. If the Court is not of opinion that
there should be such a suspension, it is asked to decide "that India must
end the measures by which it opposes the exercise of the right of passage of
Portugal". If the Court is of opinion that there should be a temporary
suspension of the right of passage, it is asked to hold now that "this
suspension shall end as soon as the course of events discloses that the
justification for the suspension has disappeared".
Before putting forward its third claim, Portugal raised another point. It
invited the Court "to hold that the arguments of India ... are without
foundation" on three points. These are arguments selected from the
contentions by which India opposes the claims made by Portugal regarding the
decision it seeks as to the future effect of the right of passage. These
arguments relate to:
(1) "India's right to adopt an attitude of neutrality in the conflict
between the lawful Government and the alleged insurgents";
(2) "The application of the provisions of the United Nations Charter
relating to human rights and to the right of self-determination of peoples";
(3) The bar constituted by "the existence in the enclaves of a ... local
government which is not represented before the Court" to [p 32] the Court's
"adjudicating, in the present circumstances, on the Portuguese claim".
It goes without saying that the Court would take such arguments into
consideration in the reasons for its Judgment if it regarded any of them as
likely to assist it in arriving at the decision it is called upon to take.
But it is no part of the judicial function of the Court to declare in the
operative part of its Judgment that any of those arguments is or is not
well-founded.
***
Before proceeding to the consideration of the merits, the Court must
ascertain whether it has jurisdiction to do so, a jurisdiction which India
has expressly contested.
Following upon the Application instituting proceedings by Portugal filed on
22 December 1955, the Court was seised of six preliminary objections raised
by the Government of India. By a Judgment given on 26 November 1957 the
Court rejected four of them and joined to the merits the two others, by
which the Government of India continued to dispute the jurisdiction of the
Court to deal with the present case.
The Court has first to adjudicate upon these two objections, which, as
originally submitted, constituted the Fifth and Sixth Preliminary
Objections.
***
In its Fifth Preliminary Objection the Government of India relied upon the
reservation which forms part of its Declaration of 28 February 1940
accepting the jurisdiction of the Court and which excludes from that
jurisdiction disputes with regard to questions which by international law
fall exclusively within the jurisdiction of India. The Government of India
argues that on that score the present dispute is outside the jurisdiction of
the Court.
In support of its challenge of the jurisdiction the Government of India
contended, in the grounds in support of its Submissions of 21 October 1959,
that:
"if its examination of the merits should lead the Court to a finding that
Portugal has not established the existence of the titles which she has
invoked, and that these titles must accordingly be regarded as non-existent,
it must follow that the question of the grant or refusal of the passage
claimed over Indian territory falls exclusively within the domestic
jurisdiction of India...".
That statement admits of no dispute, but it cannot be inferred therefrom, as
the Indian Government does, that the Court has no jurisdiction, since the
statement proceeds from a finding by the Court that the titles invoked by
Portugal are invalid. The Court [p 33] can only arrive at that finding after
first establishing its competence to examine the validity of these titles.
In the present case Portugal is claiming a right of passage over Indian
territory. It asserts the existence of a correlative obligation upon India.
It asks for a finding that India has failed to fulfil that obligation. In
support of the first two claims it invokes a Treaty of 1779, of which India
contests both the existence and the interpretation. Portugal relies upon a
practice of which India contests not only the substance, but also the
binding character as between the two States which Portugal seeks to attach
to it. Portugal further invokes international custom and the principles of
international law as it interprets them. To contend that such a right of
passage is one which can be relied upon as against India, to claim that such
an obligation is binding upon India, to invoke, whether rightly or wrongly,
such principles is to place oneself on the plane of international law.
Indeed, in the course of the proceedings both Parties took their stand upon
that ground and on occasion expressly said so. To decide upon the validity
of those principles, upon the existence of such a right of Portugal as
against India, upon such obligation of India towards Portugal, and upon the
alleged failure to fulfil that obligation, does not fall exclusively within
the jurisdiction of India.
The Fifth Objection cannot therefore be upheld.
***
The Sixth Preliminary Objection by which India has challenged the
jurisdiction of the Court likewise relates to a limitation of India's
acceptance of the jurisdiction of the Court, as set out in its Declaration
of 28 February 1940.
By the terms of that Declaration India 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". India contends that the
present dispute does not satisfy either of the two conditions stated and
that the Court is therefore without jurisdiction.
In order to form a judgment as to the Court's jurisdiction it is necessary
to consider what is the subject of the dispute.
A passage in the Application headed "Subject of the Dispute" indicates that
subject as being the conflict of views which arose between the two States
when, in 1954, India opposed the exercise of Portugal's right of passage. If
this were the subject of the dispute referred to the Court, the challenge to
the jurisdiction could not be sustained. But it appeared from the
Application itself and it was fully confirmed by the subsequent proceedings,
the Submissions of the Parties and statements made in the course of the
hearings, that the dispute submitted to the Court has a threefold subject:
[p 34]
(1) The disputed existence of a right of passage in favour of Portugal ;
(2) The alleged failure of India in July 1954 to comply with its obligations
concerning that right of passage;
(3) The redress of the illegal situation flowing from that failure.
The dispute before the Court, having this three-fold subject, could not
arise until all its constituent elements had come into existence. Among
these are the obstacles which India is alleged to have placed in the way of
exercise of passage by Portugal in 1954. The dispute therefore as submitted
to the Court could not have originated until 1954. Thus it satisfies the
time-condition to which the Declaration of India made its acceptance of the
jurisdiction of the Court subject.
Even if we consider only the part of the dispute relating to the Portuguese
claim, which India contests, to a right of passage over Indian territory,
the position is the same. It is clear from the material placed before the
Court that before 1954, passage was effected in a way recognized as
acceptable to both sides. Certain incidents occurred, but they did not lead
the Parties to adopt clearly-defined legal positions as against each other.
The "conflict of legal views" between Parties which the Permanent Court of
International Justice in the case of the Mavrommatis Palestine Concessions
(Series A, No. 2, p. II) includes in its definition of a dispute had not yet
arisen. This is clear in particular from statements made by Counsel for
India at the hearings of 15 October and 3 November, and by Counsel for
Portugal at the hearing of 28 October 1959.
Accordingly there is no justification for saying that the dispute before the
Court arose before 5 February 1930. There is not therefore, so far as the
date of the birth of the dispute is concerned, any bar to the jurisdiction
of the Court.
But India further contends that the dispute is one with regard to facts and
situations prior to that date and that this takes it outside the
jurisdiction of the Court.
On the point here under consideration, the Declaration of 28 February 1940,
by which India has accepted the jurisdiction of the Court, does not proceed
on the principle of excluding from that acceptance any given disputes: It
proceeds in a positive manner on the basis of indicating the disputes which
are included within that acceptance. By its terms, the jurisdiction of the
Court is accepted "over all disputes arising after February 5th, 1930, with
regard to situations or facts subsequent to the same date".
In accordance with the terms of the Declaration, the Court must hold that it
has jurisdiction if it finds that the dispute submitted to it is a dispute
with' regard to a situation subsequent to 5 February 1930 or is on6 with
regard to facts subsequent to that date.[p 35]
The facts or situations to which regard must be had in this connection are
those with regard to which the dispute has arisen or, in other words, as was
said by the Permanent Court in the case concerning the Electricity Company
of Sofia and Bulgaria, only "those which must be considered as being the
source of the dispute”, those which are its "real cause". The Permanent
Court, in this connection, was unwilling to regard as such an earlier
arbitral award which was the source of the rights claimed by one of the
Parties, but which had given rise to no difficulty prior to the facts
constituting the subject of the dispute. "It is true", it said, "that a
dispute may presuppose the existence of some prior situation or fact, but it
does not follow that the dispute arises in regard to that situation or
fact." (Series A/B, No. 77, p. 82.) The Permanent Court thus drew a
distinction between the situations or facts which constitute the source of
the rights claimed by one of the Parties and the situations or facts which
are the source of the dispute. Only the latter are to be taken into account
for the purpose of applying the Declaration accepting the jurisdiction of
the Court.
The dispute submitted to the Court is one with regard to a situation and, at
the same time, with regard to certain facts: on the one hand there is the
situation of the Portuguese enclaves within the-territory of India, which
gave rise to the need for a right of passage for Portugal and to its claim
to such a right; on the other hand there are the facts of 1954 which
Portugal advances as showing the failure of India to comply with its
obligations, infringements of that right.
Up to 1954 the situation of those territories may have given rise to a few
minor incidents, but passage had been effected without any controversy as to
the title under which it was effected. It was only in 1954 that such a
controversy arose and the dispute relates both to the existence of a right
of passage to go into the enclaved territories and to India's failure to
comply with obligations which, according to Portugal, were binding upon it
in this connection. It was from all of this that the dispute referred to the
Court arose; it is with regard to all of this that the dispute exists. This
whole, whatever may have been the earlier origin of one of its parts, came
into existence only after 5 February 1930. The time-condition to which
acceptance of the jurisdiction of the Court was made subject by the
Declaration of India is therefore complied with.
A finding that the Court has jurisdiction in this case will not involve
giving any retroactive effect to India's acceptance of the compulsory
jurisdiction, an effect against which the Permanent Court, in the Phosphates
in Morocco case, sought to utter a warning as one which would be in conflict
with the intention which led to such acceptance (Series A/B, No. 74, p. 24).
The Court indeed will only have to pass upon the existence of the right
claimed by Portugal as at July 1954, upon the alleged failure of India to
comply with its obligations at that time and upon any redress in respect of
[p 36] such a failure. The Court has not been asked for any finding
whatsoever with regard to the past prior to 5 February 1930.
It would be idle to argue that the contentions put forward with regard to
the existence of a right of passage would, if that question had been argued
before 1930, have been the same as when it is today. Apart from the fact
that that consideration relates only to a part of the present dispute, it
overlooks the fact that the condition to which the Court's jurisdiction is
subject does not relate to the nature of the arguments susceptible of being
advanced. The fact that a treaty, of greater or lesser antiquity, that a
rule of international law, established for a greater or lesser period, are
invoked, is not the yardstick for the jurisdiction of the Court according to
the Indian Declaration. That Declaration is limited to the requirement that
the dispute shall concern a situation or facts subsequent to 5 February
1930: the present dispute satisfies that requirement.
The Court is therefore of opinion that the Sixth Objection should not be
upheld and, consequently, it is of opinion that it has jurisdiction to deal
with the present dispute.
***
The Court will now proceed to consider the merits.
It follows from what has been indicated above, that the Court has only three
questions to consider on the merits:
(1) The existence in 1954 of a right of passage in Portugal's favour to the
extent necessary for the exercise of its sovereignty over the enclaves,
exercise of that right being regulated and controlled by India;
(2) Failure by India in 1954 to fulfil its obligation in regard to that
right of passage;
(3) In the event of a finding of such failure, the remedy for the resulting
unlawful situation.
Portugal claims a right of passage between Daman and the enclaves, and
between the enclaves, across intervening Indian territory, to the extent
necessary for the exercise of its sovereignty over the enclaves, subject to
India's right of regulation and control of the passage claimed, and without
any immunity in Portugal's favour. It claims further that India is under
obligation so to exercise its power of regulation and control as not to
prevent the passage necessary for the exercise of Portugal's sovereignty
over the enclaves.
India contends that the right claimed by Portugal is too vague and
contradictory to enable the Court to pass judgment upon it by the
application of the legal rules enumerated in Article 38 (1) of the Statute.
Portugal answers that the right which it claims is definite enough for
determination on the basis of international law, and that all that the Court
is called upon to do is to declare the existence [p 37] of the right in
favour of Portugal, leaving its actual exercise to be regulated and adjusted
between the Parties as the exigencies of the day-to-day situation might
require.
India argues that the vague and contradictory character of the right claimed
by Portugal is proved by Portugal's admission that on the one hand the
exercise of the right is subject to India's regulation and control as the
territorial sovereign, and that on the other hand the right is not
accompanied by any immunity, even in the case of the passage of armed
forces.
There is no doubt that the day-to-day exercise of the right of passage as
formulated by Portugal, with correlative obligation upon India, may give
rise to delicate questions of application, but that is not, in the view of
the Court, sufficient ground for holding that the right is not susceptible
of judicial determination with reference to Article 38 (1) of the Statute.
The Court is satisfied that the right of passage claimed by Portugal has, in
the circumstances, been defined with sufficient precision to enable the
Court to pass upon it.
***
In support of its claim, Portugal relies on the Treaty of Poona of 1779 and
on sanads (decrees), issued by the Maratha ruler in 1783 and 1785, as having
conferred sovereignty on Portugal over the enclaves with the right of
passage to them.
India objects on various grounds that what is alleged to be the Treaty of
1779 was not validly entered into and never became in law a treaty binding
upon the Marathas. The Court's attention has, in this connection, been drawn
inter alia to the divergence between the different texts of the Treaty
placed before the Court and to the absence of any text accepted as authentic
by both parties and attested by them or by their duly authorized
representatives. The Court does not consider it necessary to deal with these
and other objections raised by India to the form of the Treaty and the
procedure by means of which agreement upon its terms was reached. It is
sufficient to state that the validity of a treaty concluded as long ago as
the last quarter of the eighteenth century, in the conditions then
prevailing in the Indian Peninsula, should not be judged upon the basis of
practices and procedures which have since developed only gradually. The
Marathas themselves regarded the Treaty of 1779 as valid and binding upon
them, and gave effect to its provisions. The Treaty is frequently referred
to as such in subsequent formal Maratha documents, including the two sanads
of 1783 and 1785, which purport to have been issued in pursuance of the
Treaty. The Marathas did not at any time cast any doubt upon the validity or
binding character of the Treaty.[p 38]
India contends further that the Treaty and the two sanads of 1783 and 1785
taken together did not operate to transfer sovereignty over the assigned
villages to Portugal, but only conferred upon it, with respect to the
villages, a revenue grant of the value of 12,000 rupees per annum called a
jagir or saranjam.
Article 17 of the Treaty is relied upon by Portugal as constituting a
transfer of sovereignty. From an examination of the various texts of that
article placed before it, the Court is unable to conclude that the language
employed therein was intended to transfer sovereignty over the villages to
the Portuguese. There are several instances on the record of treaties
concluded by the Marathas which show that, where a transfer of sovereignty
was intended, appropriate and adequate expressions like cession "in
perpetuity" or "in perpetual sovereignty" were used. The expressions used in
the two sanads and connected relevant documents establish, on the other
hand, that what was granted to the Portuguese was only a revenue tenure
called a jagir or saranjam of the value of 12,000 rupees a year. This was a
very common form of grant in India and not a single instance has been
brought to the notice of the Court in which such a grant has been construed
as amounting to a cession of territory in sovereignty.
It is argued that the Portuguese were granted authority to put down revolt
or rebellion in the assigned villages and that this is an indication that
they were granted sovereignty over the villages. The Court does not consider
that this conclusion is well-founded. If the intention of the Marathas had
been to grant sovereignty over the villages to the Portuguese, it would have
been unnecessary for the grant to recite that the future sovereign would
have authority to quell a revolt or rebellion in his own territory. In the
context in which this authorization occurs, it would appear that the
intention was that the Portuguese would have authority on behalf of the
Maratha ruler and would owe a duty to him to put down any revolt or
rebellion in the villages against his authority.
It therefore appears that the Treaty of 1779 and the sanads of 1783 and 1785
were intended by the Marathas to effect in favour of the Portuguese only a
grant of a jagir or saranjam, and not to transfer sovereignty over the
villages to them.
Having regard to the view that the Court has taken of the character of the
Maratha grant in favour of the Portuguese, the situation during the Maratha
period need not detain the Court further in its consideration of Portugal's
claim of a right of passage to and from the enclaves. During the Maratha
period sovereignty over the villages comprised in the grant, as well as over
the intervening territory between coastal Daman and the villages, vested in
the Marathas. There could, therefore, be no question of any enclave or of
any right of passage for the purpose of exercising sovereignty over
enclaves. The fact that the Portuguese had access to the villages [p 39] for
the purpose of collecting revenue and in pursuit of that purpose exercised
such authority as had been delegated to them by the Marathas cannot, in the
view of the Court, be equated to a right of passage for the exercise of
sovereignty.
It is clear from a study of the material placed before the Court that the
situation underwent a change with the advent of the British as sovereign of
that part of the country i~ place of the Marathas. The British found the
Portuguese in occupation of the villages and exercising full and exclusive
administrative authority over them. They accepted the situation as they
found it and left the Portuguese in occupation of, and in exercise of
exclusive authority over, the villages. The Portuguese held themselves out
as sovereign over the villages. The British did not, as successors of the
Marathas, themselves claim sovereignty, nor did they accord express
recognition of Portuguese sovereignty, over them. The exclusive authority of
the Portuguese over the villages was never brought in question. Thus
Portuguese sovereignty over the villages was recognized by the British in
fact and by implication and was subsequently tacitly recognized by India. As
a consequence the villages comprised in the Maratha grant acquired the
character of Portuguese enclaves within Indian territory.
For the purpose of determining whether Portugal has established the right of
passage claimed by it, the Court must have regard to what happened during
the British and post-British periods. During these periods, there had
developed between the Portuguese and the territorial sovereign with regard
to passage to the enclaves a practice upon which Portugal relies for the
purpose of establishing the right of passage claimed by it.
With regard to Portugal's claim of a right of passage as formulated by it on
the basis of local custom, it is objected on behalf of India that no local
custom could be established between only two States. It is difficult to see
why the number of States between which a local custom may be established on
the basis of long practice must necessarily be larger than two. The Court
sees no reason why long continued practice between two States accepted by
them as regulating their relations should not form the basis of mutual
rights and obligations between the two States.
As already stated, Portugal claims a right of passage to the extent
necessary for the exercise of its sovereignty over the enclaves, without any
immunity and subject to the regulation and control of India. In the course
of the written and oral proceedings, the existence of the right was
discussed with reference to the different categories making up the right,
namely private persons, civil officials, goods in general, armed forces,
armed police, and arms and [p 40] ammunition. The Court will proceed to
examine whether such a right as is claimed by Portugal is established on the
basis of the practice that prevailed between the Parties during the British
and post-British periods in respect of each of these categories.
It is common ground between the Parties that the passage of private persons
and civil officials was not subject to any restrictions, beyond routine
control, during these periods. There is nothing on the record to indicate
the contrary.
Goods in general, that is to Say, all merchandise other than arms and
ammunition, also passed freely between Daman and the enclaves during the
periods in question, subject only, at certain times, to customs regulations
and such regulation and control as were necessitated by considerations of
security or revenue. The general prohibition of the transit of goods during
the Second World War and prohibitions imposed upon the transit of Salt and,
on certain occasions, upon that of liquor and materials for the distillation
of liquor, were specific measures necessitated by the considerations just
referred to. The scope and purpose of each prohibition were clearly defined.
In all other cases the passage of goods was free. No authorization or
licence was required.
The Court, therefore, concludes that, with regard to private persons, civil
officials and goods in general there existed during the British and
post-British periods a constant and uniform practice allowing free passage
between Daman and the enclaves. This practice having continued over a period
extending beyond a century and a quarter unaffected by the change of regime
in respect of the intervening territory which occurred when India became
independent, the Court is, in view of all the circumstances of the case,
satisfied that that practice was accepted as law by the Parties and has
given rise to a right and a correlative obligation.
The Court therefore holds that Portugal had in 1954 a right of passage over
intervening Indian territory between coastal Daman and the enclaves and
between the enclaves, in respect of private persons, civil officials and
goods in general, to the extent necessary, as claimed by Portugal, for the
exercise of its sovereignty over the enclaves, and subject to the regulation
and control of India.
As regards armed forces, armed police and arms and ammunition, the position
is different.
It appears that during the British period up to 1878 passage of armed forces
and armed police between British and Portuguese possessions was regulated on
a basis of reciprocity. No distinction appears to have been made in this
respect with regard to passage between Daman and the enclaves. There is
nothing to show that passage of armed forces and armed police between Daman
and the [p 41] enclaves or between the enclaves was permitted or exercised
as of right.
Paragraph 3 of Article XVIII of the Treaty of Commerce and Extradition of 26
December 1878 between Great Britain and Portugal laid down that the armed
forces of the two Governments should not enter the Indian dominions of the
other, except for the purposes specified in former Treaties, or for the
rendering of mutual assistance as provided for in the Treaty itself, or in
consequence of a formal request made by the Party desiring such entry.
Subsequent correspondence between the British and Portuguese authorities in
India shows that this provision was applicable to passage between Daman and
the enclaves.
It is argued on behalf of Portugal that on twenty-three occasions during the
years 1880-1889 Portuguese armed forces crossed British territory between
Daman and the enclaves without obtaining permission. In this connection, it
should be observed that on 8 December 1890 the Government of Bombay
forwarded to the Government of Portuguese India a complaint to the effect
that "armed men in the service of the Portuguese Government are in the habit
of passing without formal request through a portion of the British Pardi
taluka of Surat en route from Daman to Nagar Haveli and back again. It would
appear that the provisions of Article XVIII of the Treaty are thus
violated." In his letter of 22 December 1890 addressed to the Governor of
Bombay, the Governor-General of Portuguese India stated: "On so delicate a
subject I request leave to observe that Portuguese troops never cross
British territory without previous permission", and went on to add: "For
centuries has this practice been followed, whereby the treaties have been
respected and due deference shown to the British Authorities." The statement
that this practice concerning the passage of armed forces from the territory
of one State to that of the other had continued over a long period even
before the enclaves came into existence finds support, for instance, in a
Treaty of 1741 between the Marathas and the Portuguese which contained the
following provision: "A soldier of the Sarkar [Maratha ruler] entering the
territory of Daman will do so only with the permission of the Firangee
[Portuguese]. If a soldier of the Firangee were to enter the territory of
the Sarkar, he will do so only with the permission of the Sarkar. There is
no reason to enter without permission."
In consequence of the British complaint that passage of armed men between
Daman and the enclaves took place in contravention of Article XVIII of the
Treaty of 1878 and of the reply of the Governor-General of Portuguese India
of 22 December 1890, a certain amount of further correspondence took place
and the matter was concluded with the assurance contained in the letter of
the Secretary-General of the Government of Portuguese India dated 1 May
1891, in which he stated: "His Excellency thanks you for the communication
with regard to the circumstances in which the [p 42] matter is placed, and
requests me to state that on the part of this Government injunctions will be
given for the strictest observance of the provisions of Article XVIII of the
Anglo-Portuguese Treaty."
The Court is not concerned with the question whether any violation of the
relevant provision of the Treaty in fact took place. Whether any such
violation did or did not take place, the legal position with regard to the
passage of armed forces between Daman and the enclaves appears clearly from
this correspondence.
The requirement of a formal request before passage of armed forces could
take place was repeated in an agreement of 1913.
With regard to armed police, the position was similar to that of armed
forces. The Treaty of 1878 regulated the passage of armed police on the
basis of reciprocity. Paragraph 2 of Article XVIII of the Treaty made
provision for the entry of the police authorities of the parties into the
territories of the other party for certain specific purposes, e.g., the
pursuit of criminals and persons engaged in smuggling and contraband
practices, on a reciprocal basis. An agreement of 1913 established an
arrangement providing for a reciprocal concession permitting parties of
armed police to cross intervening territory, provided previous intimation
was given. An agreement of 1920 provided that armed police below a certain
rank should not enter the territory of the other party without consent
previously obtained.
An agreement of 1940 concerning passage of Portuguese armed police over the
Daman-Silvassa (Nagar-Aveli) road provided that, if the party did not exceed
ten in number, intimation of its passage should be given to the British
authorities within twenty-four hours after passage had taken place, but that
"If any number exceeding ten at a time are required so to travel at any time
the existing practice should be followed and concurrence of the British
authorities should be obtained by prior notice as heretofore."
Both with regard to armed forces and armed police, no change took place
during the post-British period after India became independent.
It would thus appear that, during the British and post-British periods,
Portuguese armed forces and armed police did not pass between Daman and the
enclaves as of right and that, after 1878, such passage could only take
place with previous authorization by the British and later by India,
accorded either under a reciprocal arrangement already agreed to, or in
individual cases. Having regard to the special circumstances of the case,
this necessity for authorization before passage could take place
constitutes, in the view of the Court, a negation of passage as of right.
The practice predicates that the territorial sovereign had the discretionary
power to withdraw or to refuse permission. It is argued that permission was
always granted, but this does not, in the opinion of the Court, affect the
legal position. There is nothing in the record [p 43] to show that grant of
permission was incumbent on the British or on India as an obligation.
As regards arms and ammunition, paragraph 4 of Article XVIII of the Treaty
of 1878 provided that the exportation of arms, ammunition or military stores
from the territories of one party to those of the other "shall not be
permitted, except with the consent of, and under rules approved of by, the
latter".
Rule 7 A, added in 1880 to the rules framed under the Indian Arms Act of
1878, provided that "nothing in des 5, 6, or 7 shall be deemed to authorize
the grant of licences ... to import any arms, ammunition or military stores
from Portuguese India, [or] to export to Portuguese India ... [such objects]
... except ... by a special licence". Subsequent practice shows that this
provision applied to transit between Daman and the enclaves.
There was thus established a clear distinction between the practice
permitting free passage of private persons, civil officials and goods in
general, and the practice requiring previous authorization, as in the case
of armed forces, armed police, and arms and ammunition.
The Court is, therefore, of the view that no right of passage in favour of
Portugal involving a correlative obligation on India has been established in
respect of armed forces, armed police, and arms and ammunition. The course
of dealings established between the Portuguese and the British authorities
with respect to the passage of these categories excludes the existence of
any such right. The practice that was established shows that, with regard to
these categories, it was well understood that passage could take place only
by permission of the British authorities. This situation continued during
the post-British period.
***
Portugal also invokes general international custom, as well as the general
principles of law recognized by civilized nations, in support of its claim
of a right of passage as formulated by it. Having arrived at the conclusion
that the course of dealings between the British and Indian authorities on
the one hand and the Portuguese on the other established a practice, well
understood between the Parties, by virtue of which Portugal had acquired a
right of passage in respect of private persons, civil officials and goods in
general, the Court does not consider it necessary to examine whether general
international custom or the general principles of law recognized by
civilized nations may lead to the same result.
As regards armed forces, armed police and arms and ammunition, the finding
of the Court that the practice established between the [p 44] Parties
required for passage in respect of these categories the permission of the
British or Indian authorities, renders it unnecessary for the Court to
determine whether or not, in the absence of the practice that actually
prevailed, general international custom or the general principles of law
recognized by civilized nations could have been relied upon by Portugal in
support of its claim to a right of passage in respect of these categories.
The Court is here dealing with a concrete case having special features.
Historically the case goes back to a period when, and relates to a region in
which, the relations between neighbouring States were not regulated by
precisely formulated rules but were governed largely by practice. Where
therefore the Court finds a practice clearly established between two States
which was accepted by the Parties as governing the relations between them,
the Court must attribute decisive effect to that practice for the purpose of
determining their specific rights and obligations. Such a particular
practice must prevail over any general rules.
***
Having found that Portugal had in 1954 a right of passage over intervening
Indian territory between Daman and the enclaves in respect of private
persons, civil officials and goods in general, the Court will proceed to
consider whether India has acted contrary to its obligation resulting from
Portugal's right of passage in respect of any of these categories.
Portugal complains of the progressive restriction of its right of passage
between October 1953 and July 1954. It does not, however, contend that India
had, during that period, acted contrary to its obligation resulting from
Portugal's right of passage. But Portugal complains that passage was
thereafter denied to Portuguese national~ of European origin, whether civil
officials or private persons, to native Indian Portuguese in the employ of
the Portuguese Government, and to a delegation that the Governor of Daman
proposed to send to Nagar-Aveli and Dadra.
It may be observed that the Governor of Daman was granted the necessary
visas for a journey to and back from Dadra as late as 21 July 1954.
The events that took place in Dadra on 21-22 July 1954 resulted in the
overthrow of Portuguese authority in that enclave. This created tension in
the surrounding Indian territory. Thereafter all passage was suspended by
India. India contends that this became necessary in view of the abnormal
situation which had arisen in Dadra and the tension created in surrounding
Indian territory.
On 26 July the Portuguese Government requested that delegates of the
Governor of Daman (if necessary limited to three) should be [p 45] enabled
to go to Nagar-Aveli in order to enter into contact with the population,
examine the situation and take the necessary administrative measures on the
spot. The request stated that if possible this delegation would also visit
Dadra and examine the situation there. It mentioned that the delegation
could be routed directly to Nagar-Aveli from Daman and need not necessarily
pass through Dadra. The Government of India in its reply dated 28 July
refused this request. The reply stressed inter alia the tension that
prevailed in the intervening Indian territory, and went on to state:
"This tension is bound to increase if Portuguese officials are permitted to
go across Indian territory for the purposes mentioned in the note. The
passage of these officials across Indian territory might also lead to other
undesirable consequences in view of the strong feelings which have been
aroused by the repressive actions of the Portuguese authorities. In these
circumstances, therefore, the Government of India regret that they cannot
entertain the demand of the Portuguese authorities for facilities to enable
them to send a delegation from Daman to Dadra and Nagar-Aveli across Indian
territory."
In view of the tension then prevailing in intervening Indian territory, the
Court is unable to hold that India's refusal of passage to the proposed
delegation and its refusal of visas to Portuguese nationals of European
origin and to native Indian Portuguese in the employ of the Portuguese
Government was action contrary to its obligation resulting from Portugal's
right of passage. Portugal's claim of a right of passage is subject to full
recognition and exercise of Indian sovereignty over the intervening
territory and without any immunity in favour of Portugal. The Court is of
the view that India's refusal of passage in those cases was, in the
circumstances, covered by its power of regulation and control of the right
of passage of Portugal.
For these reasons,
The Court,
by thirteen votes to two,
rejects the Fifth Preliminary Objection;
by eleven votes to four, rejects the Sixth Preliminary Objection;
by eleven votes to four,
finds that Portugal had in 1954 a right of passage over intervening Indian
territory between the enclaves of Dadra and Nagar-Aveli and the coastal
district of Daman and between these enclaves, to the extent necessary for
the exercise of Portuguese sovereignty over [p 46] the enclaves and subject
to the regulation and control of India, in respect of private persons, civil
officials and goods in general;
by eight votes to seven,
finds that Portugal did not have in 1954 such a right of passage in respect
of armed forces, armed police, and arms and ammunition;
by nine votes to six,
finds that India has not acted contrary to its obligations resulting from
Portugal's right of passage in respect of private persons, civil officials
and goods in general.
Done in English and French, the English text being authoritative, at the
Peace Palace, The Hague, this twelfth day of April, one thousand nine
hundred and sixty, 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) Helge Klaestad,
President.
(Signed) Garnier-Coignet,
Deputy-Registrar.
The President and Judges Basdevant, Badawi, Kojevnikov and Spiropoulos
append Declarations to the Judgment of the Court.
Judge Wellington Koo appends to the Judgment of the Court a statement of his
Separate Opinion.
Judges Winiarski and Badawi append to the Judgment of the Court a statement
of their Joint Dissenting Opinion. Judges Armand-Ugon, Moreno Quintana and
Sir Percy Spender and Judges ad hoc Chagla and Fernandes append to the
Judgment of the Court statements of their Dissenting Opinions.
(Initialled,) H. K.
(Initialied) G.-C.
[p 47]
DECLARATION BY PRESIDENT KLAESTAD
President Klaestad declares that he concurs in the Judgment subject to one
reservation. The Court has held that the question whether Portugal has a
right of passage is to be determined on the basis of the legal situation as
it existed on the eve of the events of 1954. It seems to him that the time
when the Parties filed their final Submissions (October 1959) should have
been chosen for this determination. This appears to be in conformity with
the written and oral presentations of both Parties as well as with their
final Submissions. By limiting itself to the consideration of the legal
situation as it existed in July 1954, the Judgment does not solve the whole
dispute as it is presented to the Court. In any case, the relevant date for
the determination of the legal situation could hardly be fixed at a date
earlier than the date of the Application (22 December 1955).
(Signed) Helge Klaestad.
[p 48]
DECLARATION BY JUDGE BASDEVANT
[Translation]
I have understood the dispute referred to the Court as relating essentially
to the conflict of views between the Parties with regard to the lawfulness
or unlawfulness of the measures taken by India in respect of passage between
Daman and the enclaves, it being possible to hold that those measures were
unlawful, as alleged by Portugal, only if it first be found that passage
constitutes a right of Portugal and not the result of a practice of
accommodation on the part of the sovereign of the neighbouring territories:
on this point, too, a conflict of views between the Parties has emerged
before the Court. Portugal claims that it has a right of passage to the
extent necessary for the exercise of its sovereignty over the enclaves and
that that right was disregarded by India in 1954. It does not appear to me
that the Court has been asked to adjudicate upon the existence of this right
of passage in respect of any given categories as between which the Court has
made a distinction.
I have moreover felt that it was only in order to determine the lawfulness
or unlawfulness of a particular measure restricting passage that the
distinction between the passage of private persons, that of civil officials,
that of armed forces, etc., could arise, for the purpose of determining
whether the restrictive measure was such as to compromise the exercise of
Portuguese sovereignty over the enclaves. A restriction of passage applied
to the Governor of Daman has in this connection a significance different
from that of the same restriction applied to a private person.
The Court has adopted a different course. I have, consequently, acceded to
the method which it has adopted.
Following this course, I observe that Portugal has not attributed an
absolute character to the right of passage which it claims. Apart from its
limitation to that which is necessary for the exercise of its sovereignty
over the enclaves, Portugal recognizes that the exercise of the right is
subject to the regulation and control of India. I agree with the Judgment
that that dual limitation is not sufficient to deprive the right claimed of
all substance. At the same time I am of opinion that the combination of
these various elements must lead us to interpret with prudence the facts
relied upon and not too readily to consider a given example of regulation as
equivalent to a gratuitous concession or that a given restriction is
necessarily an infringement of a right of passage, assuming such a right to
be found.
While subscribing to what is said by the Court as to the present decision
being one dependent upon the particular facts of the case, I should have
been inclined to place more weight upon the fact that in the present case
two territorial sovereignties, mutually [p 49] recognized, confront each
other. A duty of mutual respect is incumbent upon both. The problem is to
define, and to make clear in the light of the facts complained of by
Portugal, the scope of that duty, and to do this for the concrete case
before the Court, taking into account as accurately as possible the rights
of each of the Parties without exaggerating, on the one hand, the
requirements of Portuguese sovereignty over the enclaves or, on the other
hand, those of Indian sovereignty in the intervening territory. The
reconciling of the requirements of these two sovereignties was achieved
during a long period, taking into account the particular features of the
case, by the practice established between the Parties. It was in that
direction that I looked to seek the solutions which, in this particular
case, seemed to me those most in accordance with legal principle.
Acceding to the method adopted by the Court, I have had to express my view
on the issues which it regards as arising. This I have done, on some points
in the sense adopted by the Court, on other points in the contrary sense. I
shall confine myself to this indication without going into further detail,
Article 57 of the Statute entitling me, but not requiring me, to state in
greater detail the extent of my dissent.
(Signed) Basdevant.
[p 50]
DECLARATION BY JUDGE BADAWI
[Translation ]
Portugal has consistently argued in its pleadings and oral arguments that
the British and, after them, India recognized its sovereignty over the
enclaves, and that before 1954 Portugal had in fact no complaint of the way
in which they acted towards it. If there were occasional incidents or
differences of opinion between them, these were due to their power of
control and regulation which Portugal could not challenge.
On this matter the Judgment takes up a half-way position. It holds that the
British, without expressly recognizing that sovereignty, never called in
question the exclusive authority of Portugal over the enclaves, that they
thus recognized its sovereignty in fact and by implication, and that later
that sovereignty was tacitly recognized by India.
In my opinion, however, by proceeding on the basis of a finding that the
British and, after them, the Indians recognized the sovereignty of Portugal,
the question is postulated instead of being proved.
In my opinion it is necessary in the first place to examine and analyse the
relations between the British and Portugal and to draw therefrom the
appropriate conclusions in this connection.
In the absence of an explicit and formal recognition, it is necessary to
ascertain whether the attributes of sovereignty were in fact recognized.
Now, it cannot but be recognized that, apart from the fact that the
frontiers of the enclaves merging with Indian territory, the passage of
goods between Daman and the enclaves and between those enclaves was in
general treated as a case of import and export, the passage of police, armed
forces and arms was always, as the Judgment finds, subject to the necessity
of an authorization and was therefore at the discretion of the British.
The Treaty of 1578 between Great Britain and Portugal, notwithstanding its
basis in the reciprocal rights and obligations of the two Parties in their
respective spheres, could not depart from that necessity. The expiry of this
Treaty in 1892 did not of course add to the rights of Portugal or alter
their nature.
In these circumstances it would be difficult to reconcile recognition of
sovereignty with the exercise of a discretion which, in principle,
repudiates one essential consequence of that sovereignty.
The fact that the authorization was always granted in the past has no legal
bearing or significance. While the circumstances remain the same, there is
nothing surprising in the authorization being regularly granted. Nor is
there anything surprising in its being [p 51] refused if the circumstances
change. It is of the very essence of authorization, which has as its basis
the concept of discretion.
The alliance between Great Britain and Portugal and the former's guarantee
of Portugal's colonial possessions may have disguised the true legal aspect
of their relations, as regards the enclaves. The fact remains that on an
analysis of these relations it must be recognized that there existed between
.them only a factual situation sui generis having well-defined limits.
It is however difficult to classify this situation in a category of rights
recognizable in international law, and still more difficult to classify it
in the category of sovereignty: to admit the sovereignty of Portugal would
be to admit that it could involve legal consequences other than those which
are recognized in practice. That conclusion should alone suffice to exclude
such admission, since it would go beyond the factual situation which the
Court has recognized.
However much the alliance between Great Britain and Portugal and the British
guarantee to protect Portuguese possessions may have served to obscure the
extent of Portugal's rights over the enclaves, it is clear that this treaty
could only create personal rights and obligations between Portugal and Great
Britain which were obviously not transmitted to the national Government of
India. With the change of partner, the situation would necessarily be less
favourable to Portugal.
It is hardly surprising that all these confused circumstances should have
created an ambiguous situation in which Portugal believed in a genuine right
of sovereignty binding upon India, while the latter could see in it merely a
right entirely subject to its discretion, to be exercised under very
different conditions from those with which Portugal was familiar throughout
the British period.
(Signed) A. Badawi.
[p 53]
DECLARATION BY JUDGE KOJEVNIKOV
[Translation]
Judge F. I. Kojevnikov States that he can concur neither in the reasoning
nor in the operative part of the Judgment on the first and second points,
for he is of opinion that in this case the Court has no jurisdiction to
examine and adjudicate upon the merits of the dispute.
Since the majority has found that it has jurisdiction to adjudicate upon the
merits of the dispute, Judge F. I. Kojevnikov finds it necessary to state
that he is likewise unable to concur in the reasoning or in the operative
part of the Judgment on the third point, since, in his opinion, Portugal did
not possess, and does not possess any sovereign rights over Dadra and
Nagar-Aveli, and since it never had and has not now any right of passage
over Indian territory to these regions and between each of them.
Consequently Judge F. I. Kojevnikov, while not being in agreement with all
the reasoning, concurs in the Judgment only on the fourth point and on the
fifth point, without however recognizing that Portugal has any right of
passage over Indian territory in respect of private persons, civil officials
and goods in general.
(Signed) F. I. Kojevnikov.
[p 53]
DECLARATION BY JUDGE SPIROPOULOS
[Translation]
To my very great regret, I differ from the Judgment on some points:
With regard to the first and second submissions of Portugal on the merits of
the case, I am in agreement, in principle, with the opinion of Judges
Armand-Ugon, Wellington Koo and Sir Percy Spender.
With regard to the submission of Portugal that India must end the measures
by which it opposes the exercise of the right of passage, I consider that
the point of view of the Government of India must be adopted for the
following reasons:
It is a fact that after the departure of the Portuguese authorities, the
population of the enclaves set up a new autonomous authority based upon the
will of the population. Since the right of passage assumes the continuance
of the administration of the enclaves by the Portuguese, the establishment
of a new power in the enclaves must be regarded as having ipso facto put an
end to the right of passage.
(Signed) J. Spiropoulos.
[p 54]
SEPARATE OPINION OF JGDGE V. K. WELLINGTON KOO
I agree with the conclusion of the judgment of the Court in recognizing a
right of passage for Portugal between Daman and the enclaves and between the
enclaves as sanctioned by local custom in respect of private persons, civil
officials and goods in general, but I regret to be unable to concur in
excluding from the scope or content of this right the passage of Portuguese
armed forces, armed police and arms and ammunition. This right admittedly is
not an absolute right, since Portugal claims it only to the extent necessary
for the exercise of Portuguese sovereignty over the enclaves and subject to
the control and regulation of India. As thus qualified, the right of passage
is, in my opinion, applicable to all the six categories.
I
I. Although the Government of British India never expressly recognized
passage as a matter of right for any category, in fact such passage was
always granted. As a general rule, after the coming into force of the
Anglo-Portuguese Treaty of Commerce and Extradition of 26 December 1878, the
British authorities required previous authorization for the passage of armed
police, military units and arms and ammunition in each case, but in fact the
practice of authorizing such passage was more uniform and constant than in
the case of private goods. Throughout the 130 years of British rule in
India, I am not aware of one single instance in the record before the Court
of a Portuguese request for passage of armed police, military persons or
units or arms and ammunition between Daman and the enclaves ever having been
refused. On the contrary, in respect of ordinary goods there was enforced by
the British a prohibition of such transit for certain goods at different
times, such as rice, salt, liquor, spirits and ingredients for distilling
liquor and spirits, and there was indeed a total prohibition of passage for
all goods during the last war.
2. A brief review of the facts would clarify the point.
During the first 60 years of the British period no request for permission
for entry of troops or armed police of either Portugal or Great Britain into
the territory of the other was required. A practice had been established for
such passage on a basis of reciprocity, which fact probably accounts for the
paucity of documents relating to the question of passage (Rejoinder, 1, p.
181).
It appears, however, that during this period whenever there was a need of
passage for armed military personnel it was always granted.[p 55]
An incident which arose in 1859 was revealing. When two Portuguese sepoys
were escorting a Portuguese judge from Daman to Bassein, the British police
deprived the sepoys of their bayonets. The Governor-General of Goa protested
to the Governor of Bombay on 16 May 1859, stating that the two soldiers were
furnished with the necessary passes bearing the Government seal on them,
that in the territories of Daman and Goa English soldiers carrying arms were
allowed to pass unmolested, and that "it is not to be expected that
Portuguese soldiers wll be stopped from doing the same within British
territories, particularly as there is this additional circumstance connected
with Daman, viz. that there are several Portuguese villages situated within
the limits of the British territory" (Counter-Memorial, Annex C. No. 39).
The Governor of Bombay in his reply stated that "the arms of the two
Portuguese soldiers were detained through an inadvertence which this
Government regrets and which I hope will not occur again" (ibid., p. 195).
3. On this same subject of troops, Article XVIII, paragraph 3, of the Treaty
of Commerce and Extradition of 26 December 1878 provided:
"The armed forces of one of the two High Contracting parties shall not enter
the Indian dominions of the other, except for the purposes specified in
former Treaties, or for the rendering of mutual assistance as provided for
in the present Treaty, or except in consequence of a formal request made by
the party desiring such entry to the other."
This provision requiring a formal request for authorization to send troops
of one High Contracting Party across the territory of the other had
originally been proposed by the Portuguese plenipotentiary and was only
inserted in the treaty on his insistence because, as reported by the British
plenipotentiary to the Secretary of State for Foreign Affairs, "its
insertion or non-insertion might make the whole difference in. the chances
the (Portuguese) Government had of passing the Treaty itself through the
Cortes". The explanation given by the Portuguese representative was that
such a provision would enable the Portuguese Government to face the "great
opposition on the part of the public" to the "customs union" and the
"economic amalgamation of the Portuguese colonies with the system of the
British Indian Empire", as provided for in the Treaty (Rejoinder, II, Annex
54).
4.This new practice was continued after the expiration of the treaty in
1892, with permission always granted on application. Thus, for example, one
application on 13 January 1915 for passage of eleven soldiers from Daman to
Nagar-Aveli (Counter-Memorial, Annex E. No. 25), and another of 22 March
1915 for passage of one soldier from Goa to Nagar-Aveli (ibid., Annex No.
26) were granted without difficulty. During the year 1915, seventy-nine
applications were made to the Government of Bombay for permission for
Portuguese soldiers to pass through British territory. Between 29 December
[p 56] 1916 and 25 August 1917 also seventy-nine applications were made for
the same purpose. Apparently, in no instance was permission refused.
5. Earlier, two cases of passage of Portuguese soldiers across British
territory, though they do not bear directly on such transit between Daman
and the enclaves, are particularly significant in considering the question
of a local custom for such passage on the Indian peninsula. On 26 November
1901 the Portuguese Consul-General asked the Governor-General of India for
permission to send a detachment of 20 soldiers from Daman by land through
Bombay to Goa and requested him to issue "urgently" the necessary orders for
the passage. This permission was given two days later in a reply of 28
November 1901 and confirmed on 30 November 1901, adding a request that:
"... on future occasions the date of the proposed movement of such
detachments may be stated, and that sufficient notice may be given to enable
the orders of the Government to be obtained and instructions to be issued to
the local authorities" (Counter-Memorial, Annex C. No. 51).
Again, when there was a rebellion in 1912 against the Portuguese Government
in Goa, permission was asked on 5 August 1912 of the Government of Bombay
and it was granted by the Government of India the following day, stating
that they "have no objection to their proposal to march one officer and
sixty men across ten kilometres of British territory", "as a special case".
This detachment did not travel as expected. In October of the same year,
however, the Portuguese Government at Goa again requested permission to send
sixty men in the charge of an officer for about thirty miles across country
to the Portuguese border. The reply of the Government of India was again in
the affirmative, stating: "In the opinion of His Excellency we should not
allow them transport by train, but otherwise there is no objection." The
passage of the detachment in question duly took place on the 15th and 16th
November of the same year (Counter-Memorial, Annex C. No. 52).
6. The passage of armed police was provided for in Article XVIII, paragraph
2, of the same Treaty of 1878, which States:
"The revenue, magisterial and police authorities of the Indian dominions of
the High Contracting Parties shall cordially CO-operate with each other for
the maintenance, on the common lines of traffic and elsewhere, of perfect
security of persons and property; and in the pursuit of criminals and
persons engaged in smuggling and contraband practices, the said authorities
of the one High Contracting Party may cross the frontier and enter the
dominions of the other High Contracting Party; Provided that in such
dominions they shall act in accordance with the local laws and the
provisions of this Treaty" (Counter-Memorial, Annes No. 40). [p 57]
This provision relating to the passage of armed police and other authorities
was evidently based upon the practice which had already been established
during the years preceding the conclusion of the Treaty of 1878. Previous
authorization was not expressly stipulated in the Treaty as necessary, nor
was it always required, in practice, for such passage, as will be indicated
later.
7. When the Treaty of 1878 expired in 1892, the reciprocal arrangement for
passage of armed police continued in practice. By an arrangement of 1913
parties of Portuguese armed police were allowed "to travel across
intervening British territory when it is necessary for them to do so in
journeying from one part of Portuguese India to another, provided that
previous intimation (not previous authorization) is given to the local
authorities" (Counter-Memorial, Annex C. No. 53). By an agreement of 1920
armed police, as well as unarmed police of one party in actual pursuit of an
offender, may continue the pursuit uninterrupted in the territory of the
other. It also provided that armed police below a certain rank should not
enter the territory of the other party without consent previously obtained.
Apparently this restriction did not apply to those above that rank. Under an
agreement of 1940, passage of Portuguese armed police over the
Daman-Silvassa (Nagar-Aveli) road was free provided that the party did not
exceed ten in number and that intimation of the passage was given to the
British authorities within twenty-four hours of the passage. For any such
party of more than ten in number travelling over the road it was necessary
to obtain the concurrence of the British authorities, as heretofore, by
prior notice.
8. In respect of the requirement of permission for passage of Portuguese
troops and armed police over intervening British territory, it is useful to
note what the practice in fact was. When the Governor-General of Portuguese
India stated in a letter of 22 December 1890 to the Governor of Bombay that
"Portuguese troops never cross British territory without previous
permission", an investigation was ordered by the British authorities and the
District Police Inspector of the Bulsa Division reported on 28 February 1891
that "on a number of occasions Portuguese armed men had passed through
British territory without permission", adding that "British police sometimes
went armed into Portuguese territory, and were not subjected to any
interference". He recommended that this state of affairs be allowed to
continue. The Commissioner of the Northern District and the District
Magistrate of Surat concurred in the view that this reciprocal understanding
should be maintained. Accordingly, in reply to the Governor-General of
Portuguese India, the Secretary to the Government of Bombay, after stating
that an investigation found several instances of troops (Portuguese)
escorting treasure from Daman to the railway station, taking a prisoner to
Wapi from Daman, proceeding through British villages [p 58]
from Daman to Dadra and back again, or again going from Ambli to Dadra,
without any application or notice to the local authorities, and remarking
that "these instances have doubtless not been reported to H.E. the
Governor-General, and under the rule which he has laid down it would seem
that notice of such transit should have been made to the District Magistrate
of Surat", concludes:
"At the same time I am directed to observe that this Government has no
reason to suppose that the parties or persons, who have passed armed through
these strips of British territory, have not conducted themselves with
perfect propriety; and the G. in C. has given orders that, in the absence of
any special reason, they should not be interfered with. If such movements or
transfers can be anticipated doubtless the Portuguese authorities on the
spot will prevent the risk of any delay or of any further correspondence by
adhering to the rule mentioned in H.E. letter 'that Portuguese troops never
cross Br. territory without previous permission'. But as already stated by
me the Dist. Mag at Surat has been informed that this Government does not
wish any interference exercised in the circumstances now reported."
(Rejoinder, II, pp. 223-224.)
9. It is thus evident that for the passage of Portuguese troops on the
Daman-Silvassa (Nagar-Aveli) road, previous authorization was not always
required, in practice, notwithstanding the provisions of Article XVIII of
the Treaty of 1878 to the contrary.
10. On the question of the passage of Portuguese armed police, reference has
been made above to the agreement of 1940. The ongin of this agreement and
the discussions leading to its conclusion also appear significant in
ascertaining the practice which prevailed and the considerations which lay
behind it. Following an incident relating to the arrest of a German
missionary in April, 1940, by a British force in British territory
consisting of three unarmed military men and four armed men, on a bus going
from Silvassa (Nagar-Aveli) to Daman, the Government of Portuguese India
suggested:
"the possibility of coming to an understanding with the Government of
Bombay, by which on this road, and only on this road, owing to its special
nature, armed police forces of both the Governments may travel freely,
independently of any previous authorization". (Counter-Memorial, II pp.
322-323.)
Before taking a decision on the proposal and replying to the Government of
Portuguese India, the Government of Bombay consulted the various British
authorities concerned. At first it was thought that [p 59] "in view of the
reasons stated by the Government of Port. India, there seems prima facie no
objection to agree to the understanding which the Govt. of Port. India have
proposed".
But some considered it
"desirable to have some sort of control or check over the movements of armed
police forces. G.R., P.D. No. 4540 of 30.7.1913 (requiring previous notice
of passage) is one way of securing this. The question is not one of mere
administrative detail. If a general permission is to be given, it may have
to be coupled with some restrictions, e.g. as to number, purpose, etc."
The Political and Services Department of the Government of Bombay then
recommended acceptance of the proposal,
"subject to the understanding that the number of the armed policemen of the
Port. Govt/Br. Govt allowed to traverse through the British portion/Port.
portion of the Daman-Silvassa road should be restricted to the actual
requirements in each case and that intimation of the march of the armed
police forces through the territories of the Port. Govt/Br. Govt should be
given to the local authorities by the Br. Govt/Port. Govt as soon as
possible after the march takes place".
In the opinion of others consulted, "this would not achieve the object" and
the "distrust" was shared by another who thought "that without check and
control of a fairly easily exercisable type, the procedure is fraught with
danger". Hence the precisely worded formula which, finally suggested by the
Commissioner of the Northern District, was incorporated in the agreement of
1940.
II. Thus it appears clear from the foregoing review of the facts that during
the first sixty years of the British period, the prevailing practice of
allowing passage of troops and armed police of one country through the
intervening territory of the other was based upon reciprocity and it had
already developed into a local custom. While military units thus travelling
must be in possession of passes issued by their own Government, this
requirement does not appear to have applied to armed police on duty.
However, no previous authorization for either category of passage was
necessary.
Even during the period when the Treaty of 1878 was in force, though Article
XVIII of it expressly provided for the requirement of a formal request and
permission for entry of the troops of one High Contracting Party into the
territory of the other, Portuguese armed forces on a number of occasions, as
indicated by the Government of Bombay in its reply to the letter of 22
December 1890 of [p 60] the Governor-General of Portuguese India, travelled
on duty across British territory without having applied for and obtained
previous authorization, especially on the Daman-Silvassa (Nagar-Aveli) road.
What appears even more significant is the fact, as cited above, that the
British authorities expressed their preference for the continuance of this
practice of non-interference with such passages, obviously in recognition of
the necessity for them as well as out of consideration for their own
convenience on the reciprocal basis.
12. There is nothing in the record to show that this practice underwent any
significant change after the lapse of the Treaty of 1878. The agreements of
1913, 1920 and 1940, while in one of them the requirement of previous
authorization for the passage of armed forces was reaffirmed, formalized
this customary practice with more precision as regards the passage of
Portuguese armed police through intervening British territory.
13. During the post-British period, up to 1954, this practice was apparently
also respected by India.
14. As regards arms and ammunition, etc., Section 17 of Act XXXI of 1860
required, for their importation into British territory, a licence from the
Governor-General of India in Council, or from some officer authorized on his
behalf by the Governor-General of India in Council. This Act was replaced by
the Indian Arms Act of 1878 (Counter-Memorial, Annex C. No. 59). Section 6
provides that no person shall bring or take by sea or land into or out of
British India any arms, ammunition or military stores except under a licence
(with exceptions not relevant here). Section IO empowers the
Governor-General in Council to regulate or prohibit the transport of any
description of arms, ammunitions or military stores. The Indian Arms Rules
of 1879 (ibid., No. 60) provides for the issue of licences for the import
and export of arms, ammunition and military stores. In 1880, the
Governor-General in Council added Rule 7 A to these Rules (ibid., No. 60).
Rule 7A(a) provides that nothing in the Rules should be deemed to authorize
the grant of a licence to import arms, ammunition or military stores from
Portuguese India. Rule 7 A (b) provides that nothing in the Rules should be
deemed to authorize the grant of a licence to export to Portuguese India any
arms, ammunition or military stores, unless they were exported for the
exclusive use of, or covered by a special import licence issued by, the
Government of Portuguese India. This Rule 7 A (b) was made to conform to
paragraph 4 of Article XVIII of the Treaty of 1878, one provision of which
reads:
"The exportation of arms, ammunition or military stores from the Indian
dominions of one of the High Contracting Parties into [p 61] those of the
other shall not be permitted, except with the consent of, and under rules
approved of by, the latter. The Government of British India and Portuguese
India shall co-operate to enforce all such rules as are herein
contemplated."
Although Rule 7 A (b) was repealed in 1895 after the Treaty of 1878 lapsed,
Rule 7 A (a) remained in force and was re-enacted in new Rules in 1909 and
in subsequent re-enactments (ibid., No. 66).
15. But the significant point to note is that the effect of this Rule 7 A
(a) was merely to make it necessary to address applications not to the
Government of Bombay, which could grant a licence only for the export of
arms and ammunition, but, as was the case under the Act XXXI of 1860
referred to above, to the Government of India, which alone could sanction
importation of arms and ammunition from Portuguese India. Thus, when
applications for authorization to transport arms and ammunition, whether
they were from Daman to Nagar-Aveli, or from Goa to Nagar-Aveli, or from
Nagar-Aveli to Goa, were so addressed, the requested authorization was
always granted by the Government of India, regardless of whether the
articles consisted of rifles or bandoliers, or "certain rifles and
cartridges", or "certain guns and cartridges". For example, such
applications were granted on 28 November 1898, and again on 28 January 1915
and I October 1917 (Counter-Memorial, Annex C. Nos. 64 and 65). Applications
made on II January 1939 for free transit for three muskets being sent from
Nagar-Aveli to Daman and three others to be sent from Daman to Nagar-Aveli
(Counter-Memorial, Annex E. No. 40) and on 24 March 1939 for eight muskets
with 400 cartridges and one revolver with 50 cartridges (ibid., Annex No.
41), and on 17 April 1940 for free transit for 52,000 cartridges to be sent
from Daman to Nagar-Aveli (ibid., No. 42), were likewise all granted.
16. The conclusion to be drawn from the practice of the British authorities
in regard to Portuguese arms and ammunition is that while their importation
into British territory was nominally subject to the strict provisions of the
Arms Act and Arms Rules for general application, special dispensation was
always granted by the Government of India which was alone competent to
authorize it. This was a natural and understandable practice, for the
passage of arms and ammunition, like that of troops, was a matter of greater
importance to the territorial sovereign in consideration of security than
the passage of goods and civil officials, and therefore required more
effective control. But the need of troops and arms and ammunition, whenever
it arose, was also more imperative for the exercise of her sovereignty by
Portugal over the enclaves and obviously this factor was fully realized by
the British authorities. In order to obviate misinterpretation of the
general provisions of the Arms Act and the Arms Rules, particularly Rule 7 A
(a), and consequent [p 62] controversy and incidents with Portugal, the
grant of authorization for such passage between Portuguese possessions in
India, including that between Daman and the enclaves, was controlled and
regulated directly by the Government of India instead of by the British
local authorities. The fact that no application in the record for such
passage over British territory to the Portuguese enclaves from Daman or from
the enclaves to another part of Portuguese territory in the Indian peninsula
was ever refused, clearly indicates, in my view, British recognition of the
special situation involved in regard to the enclaves.
17. The Government of the Union of India respected and continued this
practice up till 1954.
18. From the foregoing account of the British and Indian practice in
regulating the passage of troops, armed police, and arms and ammunition from
one Portuguese possession to another across intervening British and later
Indian territory, it appears clear that such passage took place constantly
and without difficulty, just as in the case of private persons, civil
officials and ordinary goods. In fact, as pointed out above, the practice of
authorizing passage of arms and ammunition was even more uniform and
constant than in the case of ordinary goods.
19. The requirement of an application to, and a permission by, the British
authorities for the passage of troops and arms and ammunition in each case
only meant, in my view, a stricter measure of control and regulation and did
not necessarily signify that the British considered themselves as warranted
to refuse it at will and did not regard Portugal as entitled to effect such
passage. The degree of control must naturally vary according to the nature
of the passage desired. The relatively simpler and less formal procedure
adopted for the passage of Portuguese armed police, under the various
agreements referred to above for "control of a fairly easily exercisable
type" in the words of the British authorities cited above, appears clearly
to confirm this view.
For between the different categories of passage, as for example between
civil officials and armed forces or armed police and between ordinary goods
and arms or ammunition, the difference in the procedure of allowing passage
between Daman and the enclaves was a matter of degree in the policy of
control and regulation rather than intended to establish a distinction
between what was considered warranted by local custom and what was not so
warranted. The uniformity and constancy of the practice of granting passage
to armed forces, armed police and arms and ammunition was, indeed, more
marked than, for example, in the case of ordinary goods as [p 63] seen
earlier. Nor was there, it appears to me, any evidence of less consciousness
on the part of the British authorities of an obligation, opinio juris sive
necessitatis, in regard to these three categories of passage than in regard
to those of private persons, Portuguese civil officials and ordinary goods.
In my view there was implicit recognition on the part of the British
authorities of a local custom for permitting passage between Daman and the
enclaves of all the six categories of persons and goods, without any legal
distinction but all subject, if necessary, to the control and regulation of
the intervening territorial State.
20. The right of passage, as claimed and defined by Portugal, has two
concurrent features. Its content is to the extent necessary for the exercise
of Portuguese sovereignty over the enclaves, and its exercise is, at the
same time, subject to the control and regulation of India in so far as the
passage takes place over the intervening Indian territory. These two
elements are inherent in the principle of territorial sovereignty from which
flows the right of passage on the one hand and the right of control and
regulation on the other. It means that with the right on each side there
also exists an obligation—that of India to accord passage and that of
Portugal to respect the rules of procedure respecting the application for,
and grant of, passage. In other words, the rights and obligations of both
sides are concomitant and correlative. But they are reconcilable with each
other in the light of how the problem was successfully dealt with in the
past—-in the long period before 1954; that is, on the basis of the local
custom which had crystallized from the constant and uniform practice of both
the British and Indian authorities before that year.
It appears clear to me that the basic element in the policy of control and
regulation of passage by the intervening territorial State in the past was
consideration in good faith of its own national interest. Where there was
possible prejudice to such interest, passage was restricted or prohibited as
was the case in regard to ordinary goods. But where there was no likelihood
of such prejudice, passage was readily granted even in regard to armed
forces, armed police, and arms and ammunition, as has been shown above. This
element of interest was the common denominator in the policy of control and
regulation applied to all categories of passage, whatever variations there
were in the procedure adopted for granting it. [p 64]
21. If a local custom had evolved, as it undoubtedly had, for a right of
passage between Daman and the enclaves for private persons, Portuguese civil
officials and ordinary goods, a similar custom, in my opinion based upon the
consistent practice in the past, had likewise come into being for a right of
passage in regard to Portuguese armed forces, armed police, and arms and
ammunition. Whatever distinction was observed by the British and Indian
Governments in granting passage between the enclaves and between them and
coastal Daman for the different categories was a matter of degree in
applying a common policy of control and regulation for all the categories of
passage rather than a matter of studied differentiation of the scope or
content of the right of passage as between one category and another.
22. It should also be noted that originally Portugal possessed an implicit
right of access to the assigned villages to collect the granted annual
revenue and this right necessarily included access of Portuguese troops,
armed police, and arms and ammunition over the intervening Maratha territory
from Daman to the villages. In fact Article II of the "Capitulations
relating to the conditions in which Portugal receives the Pragana of
Nagar-Aveli", dated 1785 (Annex 8 to Memorial) reads in part:
"... and the Portuguese will quell any rebellion of the Colys which might
break out in the same Pragana".
True, this is of the character of an obligation imposed upon Portugal. But
in order to be able to carry out this obligation, she was entitled, by
necessary implication, to use all requisite and reasonable means. In other
words, she had the implicit right to bring Portuguese troops, armed police,
and arms and ammunition into the villages for the purpose of quelling
rebellion. This right of access had, under the Marathas, as valid a basis as
that for Portuguese civil officials and non-military goods for their use.
Though not often invoked by Portugal during the Maratha period, it was more
frequently exercised after the fall of the Maratha Empire as an essential
attribute of Portuguese sovereignty over the enclaves. Like the right of
passage for private persons, civil officials and ordinary goods, it also
developed into a customary right in fact, as seen from the uniform and
constant practice referred to above.
II
23. Moreover, there are additional grounds for recognizing the broader scope
of the right of passage for Portugal. [p 65]
Since Portugal bases this claim upon its title of sovereignty, it is equally
justifiable under the principle of territorial sovereignty. For as to the
validity of this title there is little ground for doubt. Although no such
title was acquired under the Marathas, and although during the early years
of British succession the attitude of the British authorities on the subject
was obscure, their tacit recognition of Portuguese sovereignty over the
enclaves became increasingly clear as time went on. The record of
negotiations between the Portuguese and British Commissioners for "the
exchange of a narrow piece of land which should unite the Pragana of
Nagar-Aveli with the other Praganasadjacent to the Fort of Daman"', though
the project did not materialize, lends further support to this conclusion.
It is also confirmed by the Treaty of 26 December 1878 concluded between
Great Britain and Portugal which in its preamble states: "being equally
animated by the desire... to improve and extend the relations of commerce
between their respective dominions...". No exception or exclusion was
stipulated as regards the enclaves in the reference to the "respective
dominions"; and British recognition of Portuguese sovereignty over the
enclaves, as well as over the other parts of the Portuguese dominions, must
have been equally implied. There was nothing in the record to indicate any
modification of the British attitude after the termination of the treaty in
1891.
24. When India succeeded Great Britain and became an independent State,
there was no indication in the conduct of her relations with Portugal that
she had adopted a different attitude in regard to the Portuguese dominions
on the Indian sub-continent, notwithstanding her known aspiration for "the
re-establishment of her geographical and historical unity". It is true that
Counsel for India asked in the oral pleadings: "When—where—by whom—did the
Indian Union recognize Portugal's territorial sovereignty?" But under
international law such recognition need not always be express or explicit.
It does not always call for an open declaration; it may be tacit.
In all its dealings with the Portuguese authorities in the Indian Peninsula
or at Lisbon, the Government of the Indian Union, until the events of 1954
occurred, appears to have always regarded the enclaves, as well as the other
territories of Portuguese India, as belonging to Portugal. Indeed in the
Aide-Memoire of the Indian Legation at Lisbon of 27 February 1950 to the
Portuguese Ministry of Foreign Affairs, "the request for an immediate start
of negotiations regarding the future of Portuguese colonies in India" was
expressly stated to be for "the peaceful reunion of what is now Portuguese
India with the Indian Republic". (Memorial, Annex 29.) Again, in a Note of
14 January 1953 from the Indian Legation to [p 66] the Portuguese Ministry
of Foreign Affairs, it is stated in its final paragraph:
"The Government of India have suggested that the principle of direct
transfer should be accepted first and that this should be followed by a de
facto transfer of the administration... The legal sovereignty of Portugal
would continue until the steps then considered appropriate had been taken to
give effect to the decisions arrived at. The Government of India would be
glad if the Government of Portugal would accept these suggestions as a basis
for the proposed negotiations." (Memorial, Annex 31.)
Thus it is beyond doubt that as late as 1953 India continued to consider all
the Portuguese territories in India as under Portugal's legal sovereignty
without making any exception concerning the enclaves of
Dadra and Nagar-Aveli.
25. Since international law makes no distinction between one sovereignty and
another, Portuguese sovereignty over the enclaves is as much entitled to
exist as the sovereignty of the State by whose territory it is encircled.
And the passage of troops, armed police, and arms and ammunition is as
indispensable to the exercise of the Portuguese sovereignty as, if not more
so than, the passage of private persons, civil officials and ordinary goods.
Even though the situation of an enclave is a special one, it is
inconceivable in international law that one sovereignty exists only by the
will or caprice of another sovereignty. But on the other hand, while it is
true that this right of passage imposes a correlative obligation binding on
the State through whose territory it has to be effected, it is not an
absolute, unrestricted right; in the nature of things its exercise must be
subject to control and regulation by the sovereign of the intervening
territory.
The existence of two conflicting rights, however, is not an uncommon
phenomenon in international law. In the complexities of intercourse between
nations such a situation is often unavoidable. It is, however, not an
intractable problem; its solution only calls for mutual adaptation and
adjustment. By reference to, and application of, the general principles of
law as stipulated in Article 38, 1, (c), of the Statute, as well as to
customary international law, similar situations have found solutions in the
past.
26. In municipal law, as disclosed by a comparative study by Professor Max
Rheinstein, the right of access to enclaved property is always sanctioned.
Admittedly, there are important distinctions between a right of passage of
an international enclave and that of an enclaved land owned by a private
individual. But in whatever mould municipal law may be cast, in whatever
technical framework it may be installed, in harmony with national tradition
or out of preference for a particular legal fiction, the underlying prin-[p
67]ciple of recognition of such a right, in its essence, is the same. It is
the principle of justice founded on reason.
27. Indeed, in the last analysis, the fact that an enclaved land in
municipal law and an enclaved territory in the international domain has
always been able to enjoy passage through the surrounding land of another
owner or the surrounding territory of another State, is based upon reason
and the elementary principle of justice. For such land or territory this
transit is a necessity and it is reasonable to provide for this necessity
both in municipal law and in customary international law. As the great Dutch
jurisconsult, Cornelius van Bynkershoek, has so well said: "In the law of
nations, reason is sovereign..." It is reason which dictates the recognition
of a rule of international customary law in application of the principle of
justice. Only by the existence of this rule of customary law can it be
explained that through the centuries, though many territorial enclaves have
existed and disappeared in the course of the development of international
relations, not a single case of disappearance has been due to denial of
passage and the consequent geographical suffocation or strangulation. The
reasonableness of according passage through the surrounding territory
accounts for the constancy and uniformity of the usage which has ripened
into a customary right of passage for international enclaves, however
restricted or qualified it may be according to the circumstances of each
case.
28. On the surface, the right of passage of the sovereign of an enclave and
the right of the sovereign of the surrounding territory to uphold his
territorial sovereignty appear to be conflicting, but, as I have already
remarked, they are not incompatible or irreconcilable with each other. The
fact that enclaves exist and thrive today in many parts of the world shows
that whatever difficulties may have arisen between the enclaved and
enclaving territories from time to time have always been satisfactorily
arranged in good faith and with goodwill on both sides. The relations
between the two territorial situations are not unlike the relations between
the ocean and the rivers which empty their waters into it. Sometimes the
necessity to exercise the sovereignty over the enclave is more pressing than
the right of the enclaving State to protect its territorial sovereignty
intact and sometimes the reverse is true; just as during the spring thaw a
river rising high with water discharges it deep into the ocean and, during
the flow of the tide, the ocean pushes its tide water well up the river,
without denying the existence of either. They CO-exist and perform their
respective functions. There is no intrinsic conflict between them and there
is none either between the right of passage of an enclave of one State and
the territorial sovereignty of the enclosing State. For customary
international law is no less resourceful than the law of geophysics. [p 68]
29. For the reasons stated above, I hold that Portugal's right of passage
between the enclaves and between them and coastal Daman embraces all the six
categories, to the extent necessary for the exercise of Portuguese
sovereignty over the enclaves and subject to control and regulation by
India.
(Signed) Wellington Koo.
[p 69]
EISSENTING OPINION OF JUDGES WINIARSKI AND BADAWI
[Translation]
It is with great regret that we find ourselves unable to subscribe to the
decision of the Court which rejects the Sixth Objection of the Indian Union
and consequently finds that the Court has jurisdiction in the present case.
I. By its Declaration of 19 September 1929, ratified on 5 February 1930,
India accepted the compulsory jurisdiction of the Court for disputes that
might arise after the date of ratification with regard to situations or
facts subsequent to that ratification.
The date of 5 February 1930—which we shall call the crucial date—was
maintained in the Indian Declaration of 28 February 1940. The twofold
condition set out in that Declaration constitutes an important limitation
ratione temporis of the obligation assumed by the Indian Union.
The Parties discussed at length the bearing of the Sixth Objection upon the
present case; they did so in their written pleadings and at the hearings,
both in 1957, during the proceedings on the Preliminary Objections, and in
the present stage of the case concerned with the merits. The fact that the
Court, in 1957, decided to join this objection to the merits shows how aware
it was of the importance, not to Say the necessity, of only deciding upon
the fate of this objection when it had obtained sufficient knowledge about
the facts of the dispute.
Of the two limitations just mentioned, the Judgment rejects the first: the
Court has admitted the argument that the dispute arose after 5 February
1930, the crucial date of the Indian Declaration; the discussion of the
merits furnished no evidence to the contrary. On the other hand, the
question whether the dispute arose with regard to situations or facts
subsequent to that date should, in Our opinion, be answered in the sense of
the Indian argument, thus involving as a consequence a finding by the Court
that it is without jurisdiction.
The final submission of Portugal on this point is inter alia:
"Whereas ... the situations or facts in respect of which the dispute arose
are likewise subsequent to 5 February 1930, since they also date from 1954;
Whereas these .situations or facts are really nothing but those giving rise
to the dispute, and whereas one must regard as such the situations or facts
imputed by the applicant State to the respondent State as unlawful, i.e. as
constituting violations of the respondent State's international obligations;
[p 70]
Whereas the situations or facts which Portugal imputes to the Indian Union
as unlawful also date from 1954, as has already been pointed out;
For these reasons,
May it please the Court to dismiss the Objection."
2. When the case was heard in Court, both Parties invoked the Judgment of
the Permanent Court of International Justice in the Phosphates in Morocco
case, seeking in it arguments to support their respective claims.
That Judgment, with the Judgment given in the case of the Electricity
Company of Sofia and Bulgaria, is an important contribution by the
jurisprudence of the Permanent Court to the study of the question of
limitations ratione temporis to the obligations of States which accept the
compulsory jurisdiction of the Court. We feel bound to refer to it.
The Judgment quoted itself warns the parties against hasty conclusions.
In one place it states "that the use of these two terms [situations or
facts] shows the intention of the signatory State to embrace, in the most
comprehensive expression possible, all the different factors capable of
giving rise to a dispute". And it goes on to say: "The Court [the Permanent
Court of International Justice] also observes that the two terms
'situations' and 'facts' are placed in conjunction with one another, so that
the limitation ratione temporis is common to them both, and that the
employment of one term or of the other could not have the effect of
extending the compulsory jurisdiction." In another passage the Judgment
says: "The question whether a given situation or fact is prior or subsequent
to a particular date is one to be decided in regard to each specific case,
just as the question of the situations or facts with regard to which the
dispute arose must be decided in regard to each specific case."
It is the duty of the Court to establish a relationship contemplated by the
Declaration between the dispute and the "situations or facts".
3. The Portuguese Counsel tried to keep the content of these
notions—situations or facts—within the narrowest possible limit. In their
view "the facts or situations" must be understood to mean those "which the
applicant Party imputes to the respondent Party as unlawful". "A State
commits certain acts, creates certain situations. Another State stigmatizes
these acts or situations as unlawful. It declares that they violate its
right..." And again: "All that has to be considered is the situation
denounced as unlawful by the applicant State and what unlawful act that
State puts forward as the origin of that situation."
It was observed in this connection that the Permanent Court considered it
sufficient, as a reason for holding itself to be without jurisdiction, that
the act which was the subject of the dispute [p 71] between France and Italy
was merely the application of a dahir of 1920, that is, a date earlier than
the crucial date, and held that it was unnecessary to consider whether the
dahir was or was not contrary to the international obligations assumed by
France. In order to appreciate the Court's meaning, the important point in
this statement to keep in mind is that, in order to dismiss the arguments of
Italy, the Court saw no need to determine that the situations or facts which
gave rise to the dispute were unlawful acts. A State does not commit an
unlawful act, nor incur international responsibility, simply by enacting a
law containing provisions that are incompatible with its international
undertakings. If the application of that law leads to acts which conflict
with the State's international undertakings, the judge will simply declare
that that State cannot validly invoke its law in support of those acts. The
Permanent Court of International Justice decided in that sense on two or
three occasions.
The dahirs of 1920 were not in themselves unlawful acts; nevertheless, the
French objection was allowed, because they were the source of the acts
denounced by Italy as unlawful and they were prior to the crucial date.
4. The Portuguese case appears to assign to the applicant State the
principal if not decisive part in determining the sources of the dispute. It
was said on behalf of Portugal that the facts and situations really
deserving that name are "those facts or situations which the applicant Party
imputes to the Respondent as unlawful".
The Court cannot simply register this claim by the applicant State,
especially as that State, confronted with the crucial date, may have an
interest in circumscribing the period of time; for instance, by ignoring
certain relationships or by minimizing their bearing upon its case; in a
word, by isolating the dispute from the situation of which it is the result;
just as the respondent State may tend to antedate the sources of the dispute
by attributing them to a time when they would not be covered by the
Declaration.
The Court remains entirely free in its examination of the connections
between the facts and situations of the case and the subject of the dispute.
In some cases, where the facts are isolated and easily ascertainable, that
task will be comparatively easy; in other cases, where the situation or
state of affairs or skein of de facto and de jure relationships is complex
and difficult to unravel, the task may be a hard one; but the first question
of all to decide is the jurisdiction of the Court.
5. We find it hard to accept the Portuguese argument for another reason: it
appears to confuse the facts of the dispute with the facts and situations
from which that dispute arose, to employ a formula adopted by the Permanent
Court. The facts of the dispute may be of [p 72] recent date and may be
comprised within a comparatively short space of time, whereas the facts or
situations from which the dispute arose may date back far enough to fall
outside the jurisdiction of the Court as accepted by the Declaration of the
respondent State. In the Judgment already quoted, the Permanent Court of
International Justice said: "It would be impossible to admit the existence
of such a relationship [a really subsequent date] between a dispute and
subsequent factors [subsequent to the crucial date] which either presume the
existence or are merely the confirmation or development of earlier
situations or facts constituting the real causes of the dispute."
We will cite one more dictum of the Permanent Court: "The dispute cannot be
separated from the situation of which it is the result." Thus, the Permanent
Court implies that there may be cases in which one of the Parties tries to
separate the dispute from the situation of which it is the result.
In the case now before the Court, the applicant State declares that all the
facts and situations relating to the dispute are comprised within the year
1954, and do not date back farther; these are exclusively the acts which it
imputes to the opposite Party as unlawful. The latter, however, replies that
the case is in fact not so simple, that the facts and situations from which
the dispute arose already existed before 1930, to which the applicant State
replies that until 1954 it had no cause of complaint and that the various
incidents, differences of opinion, minor disputes, and even formal
prohibitions are to be ascribed only to the exercise by the territorial
State of a control and regulation which Portugal readily admits to have been
legitimate. Portugal declares that it has always possessed and effectively
exercised the right of passage, a general right, within the limits necessary
for the exercise of its sovereignty over the enclaves, and that that right
was respected by the territorial State until 1954.
The Judgment seems to admit that the situation which forms the origin of the
dispute is both prior and subsequent to the crucial date, but from this it
draws conclusions to which we cannot subscribe. It begins by finding that
the limitation ratione temporis in the Indian Declaration is drafted "in a
positive manner ... indicating the disputes which are included within that
acceptance". It certainly does not proceed in a negative manner by excluding
disputes arising from situations or facts prior to the crucial date, but
there is no doubt that the Indian Union, when it accepted the compulsory
jurisdiction of the Court for subsequent situations or facts giving rise to
disputes, intended to exclude prior situations or facts.
The Judgment in the Phosphates in Morocco case, already quoted, also says:
"However, in answering these questions it is necessary always to bear in
mind the will of the State which only accepted the compulsory jurisdiction
within specified limits and consequently [p 73] only intended to submit to
that jurisdiction disputes having actually arisen from situations or facts
subsequent to its acceptance."
6. Portugal sees in the past, beginning with 1779 and continuing till the
events of 1954, only the source of its right of passage. The terms are those
which the Permanent Court of International Justice had used in its Judgment
in the Electricity Company of Sofia and Bulgaria case. There the Bulgarian
objection ratione temporis invoked the decision of the Arbitral Tribunal
which preceded the crucial date. But the problem is a different one: the
decision of the Arbitral Tribunal had been recognized by both parties to the
dispute as lawfully binding upon them; the fact was indisputable. The
dispute referred only to certain measures taken by the Bulgarian authorities
after the crucial date which Belgium considered to be at variance with the
terms of the arbitral decision. The Permanent Court of International Justice
found that the source of the dispute was not prior to the crucial date fixed
by the Bulgarian Declaration.
In Our own case there is no law jointly recognized by both Parties. Portugal
claims to infer one, among other things, from practice, that is to say from
a series of acts and facts going back more than 150 years; the Indian Union
relies upon the same long practice to maintain that the alleged right of
passage in Portugal's favour has no existence. For the problem which
concerns us, we have not to know who is right and who is wrong; the question
to be determined is whether it is not the same situation which entered into
an acute stage and reached a climax in 1954, leading rapidly to a dispute
and giving rise to the proceedings before the Court. The question is whether
the acts denounced by Portugal as unlawful have their origin in a situation
going back beyond the crucial date.
We find it hard to subscribe to the interpretation of the Indian Declaration
whereby it is enough for the situation or fact concerning the dispute to be
subsequent to the crucial date, in order that the Court's jurisdiction may
be admitted, still less to the distinction made between a situation and a
fact, which, in Our opinion arbitrarily, ascribes to the notion of situation
a purely geographical meaning (the enclave), whereas that is only one factor
in the situation, and the latter, a compound of relationships of fact and
law, covers the problem of passage in all its aspects as it presented itself
to the Parties in the British and post-British periods. Moreover, it is not
possible, for the purposes of the interpretation of the Indian Declaration,
to join the facts of the dispute, which date from 1954, to the earlier
situation and to regard them as a comprehensive whole which "came into
existence only after 5 February 1930". This is at variance with the clearly
expressed intention of the Indian Declaration. If the situation from which
the dispute arose goes back beyond the crucial date the consent of the
Indian Union is lacking. We say advisedly: situation from which the dispute
[p 74] arose; it is not a question of a more or less ancient treaty or of a
de of law established a longer or shorter time ago.
7. What seems to us to be decisive is the nature of the action brought by
the Portuguese Government.
In the final Submissions of Portugal, the first and principal claim is as
follows:
"May it please the Court to adjudge and declare that the right of passage
between the enclaves of Dadra and Nagar-Aveli and between these enclaves and
the coastal district of Daman, as defined above, is a right possessed by
Portugal and which must be respected by India."
What the Portuguese Government is asking of the Court, therefore, is that it
shall deliver in the first place a declaratory judgment. The Permanent Court
of International Justice delivered such judgments. In its Judgment No. II,
interpreting Judgments Nos. 7 and 8, it said:
"The Court's Judgment No. 7 is in the nature of a declaratory judgment, the
intention of which is to ensure recognition of a situation at law once and
for all and with binding force as between the Parties; so that the legal
position thus established cannot again be called in question in so far as
the legal effects ensuing therefrom are concerned."
That is exactly what the first Portuguese submission is asking from the
Court. There is therefore no question of unlawful acts; and although this
claim is followed by the two others, complementary and contingent, it
constitutes the very essence of the case.
It is permissible to enquire whether, in the face of this first sub- .
mission, the arguments of Portugal with regard to the Sixth Objection retain
any force. For here it is not simply a case of applying an indisputable rule
of law in order to provide a remedy for the violation of the right of one
Party resulting from an unlawful act by the other Party. The object of the
suit, as it follows from the first Portuguese Submission, is to obtain from
the Court a recognition and statement of the situation at law between the
Parties; that is not limited to the events of 1954 and cannot be regarded as
part of a collective whole subsequent to the crucial date. On the contrary,
all the factors in the dispute contested by one or the other Party are to be
found in the post-Maratha period; the Parties did not view matters and their
respective positions in the same light; the origin of the present dispute
could be seen in that prolonged situation.
It seems, however that we should be justified in going farther than that.
Unable to admit that the right of passage claimed by Portugal has its basis
in a treaty, the Court was obliged to turn its attention to the practice
which might have been accepted as binding upon the [p 75] Parties. It then
found itself faced with a very special situation in which, even over a
considerable period of time, the Parties were unable, to reach agreement as
to their respective rights and obligations. They ask the Court to define
them. In these circumstances it is clear that not only the situation which
gave rise to the present dispute, but also the very subject of the dispute,
as it follows from the principal Portuguese claim, come within the period
preceding the crucial date of the Indian Declaration.
(Signed) B. Winiarski.
(Signed) A. Badawi.
[p 76]
DISSENTING OPINION OF JUDGE ARMAND-UGON
[Translation]
As I am, to my regret, unable to concur entirely in the decision of the
Court on the merits, I feel called upon to explain the reason for my
dissenting opinion.
***
The Portuguese Government asserts in the first of its final submissions that
it possessed a right of passage between Daman and the enclaves of Dadra and
Nagar-Aveli in July 1954.
That right, Portugal argues, is a right of transit the sole purpose of which
is to ensure continuous .communication between the enclaves themselves and
between the enclaves and Daman. The transit is between two pieces of
Portuguese territory. It involves a right of access to Portuguese territory
enclaved within Indian territory, not a right of access to the latter. Such
a right must be regulated to the extent essential for the exercise of
Portuguese sovereignty within the enclaves of Dadra and Nagar-Aveli.
Sovereignty over the territory through which communication takes place
belongs exclusively to India, and this Portugal does not dispute; that
transit remains subject to Indian sovereignty, and no immunity is claimed;
it is therefore for the Indian Government to regulate and control this right
of transit across its territory. This regulation and control must be
exercised in good faith and under the responsibility of India; but that
power of regulation is not a discretionary power and the Indian Government
cannot be allowed to prevent the transit necessary for the exercise of
Portuguese sovereignty within the enclaves.
This first of the final submissions of the Portuguese Government asks the
Court to adjudge and declare:
"That the right of passage between the enclaves of Dadra and Nagar-Aveli and
between these enclaves and the coastal district of Daman, as defined above,
is a right possessed by Portugal and which must be respected by India."
It is upon this basis that the Court has been asked to adjudicate, and it
must be taken as a whole, neither the Parties nor the Court itself being
permitted to make any alterations in it. The words "finalement conclure" in
the French text of Article 48 of the Statute of the Court make it clear that
such submissions are final and unalterable and differ from the submissions
referred to in Articles 42 and 43 of the Rules of Court, which, being
preliminary submissions, may be modified. It is evident therefore that,
"though (the Court) may construe the submissions of the Parties, it cannot
[p 77] substitute itself for them and formulate new submissions simply on
the basis of arguments and facts advanced" (Case concerning Certain German
interests, Series A, Judgment No. 7, p. 35, 1927,). A final submission
cannot be divided into several separate submissions based upon the elements
and aspects it contains. "It is the duty of the Court not only to reply to
the questions as stated in the final submissions of the Parties, but also to
abstain from deciding points not included in those submissions" (I.C.J.
Reports 1950, p. 402). The Court is required to decide upon the final
submissions of the Parties, not to revise them.
What Portugal claims is a right peculiar to itself. The right of passage
claimed forms a whole. It is always the same right. The decision asked for
is its establishment. The present case is entered in the General List as
"Right of Passage over Indian Territory".
Counsel for Portugal, in particular, argued that: "The right, in itself,
remains unchanged, as a right of transit between Daman and the enclaves to
the extent necessary for the exercise of sovereignty over those enclaves.
What varies is the regulation of the right, for it presents different
aspects at different periods. But in the midst of all these extrinsic
transformations, which do not affect the substance of the right, that right
remains unimpaired." (Oral proceedings, Vol. II, p. 67.)
The Court is asked for a declaratory judgment as to the existence of the
right of passage; provision is made for such a request in Article 36 (2) (b)
of the Statute of the Court.
It is not upon the breaking up and dismemberment of the content and the
elements of this right that the Court has to pass. The conditions governing
the execution of the right of passage are within the jurisdiction of the
Indian Government and none of the submissions of the Parties touches upon
them. The forms in which the right of passage is exercised must not be
confused with the right itself. A decision on the right of passage cannot be
based upon the forms and conditions of its application without departing
from the specific terms of the final submissions of the Parties. The
Government of Portugal asks the Court to adjudicate upon "aright of passage"
and the Government of India asks the Court to hold "that the claim is
unfounded"; the claims of the Parties are perfectly clear. The Court is not
requested to adjudicate upon the forms in which the right of passage is to
be exercised, that is something which has not been asked.
Portugal claims to derive the right from the provisions of the Treaty of
1779 from general and local custom and from certain principles of
international law.
The fact that Portugal claims this right for the purposes of access to the
enclaves makes it necessary to seek the legal foundation for this claim. The
road leading from Daman to the enclaves is Indian [p 78]
territory, and the right claimed by Portugal would restrict the rights of
India in this portion of territory. The judicial sanctioning of a right of
this nature must have a firm legal basis.
The passage with which we are concerned was exercised during the Maratha,
British and Indian periods. Those periods constitute the period of its
normal exercise; an abnormal period begins after the events of July 1954
when the blockade of the enclaves by the Indian Government was brought into
effect.
***
The Applicant places the origin of its right of passage at the period when
the villages of Nagar-Aveli and Dadra were ceded to Portugal by the Maratha
Government. That cession is said to have resulted from the Treaty of 1779,
the agreements of 1783 and 1785 and the subsequent sanads (decrees). There
was a long discussion between the Parties as to the existence of that Treaty
and as to the content of its Article 17.
There is no denying that at that time neither the Maratha Government nor the
Portuguese Government had any doubt that the said Treaty had in fact been
concluded and was valid. The two Governments were agreed on that. There is
therefore no purpose in pursuing the argument on a point they both accepted.
We can rely on their wisdom; their conduct should suffice to convince us
that a treaty was concluded in 1779 between the Maratha and Portuguese
Governments. When a Government declares officially that a treaty was
concluded, the Court can hold that this declaration is sufficient and it is
not required to check its accuracy. It was admitted by the Maratha
Government.
The purport of Article 17 of this Treaty is disputed by the Parties.
The Applicant alleges that certain territories were ceded in full
sovereignty, on the basis of their revenues. The Respondent claims that
there was only a jagir or saranjam, that is, a temporary and revocable
cession of the revenues of the villages of Nagar-Aveli and Dadra.
In the support of its contention the Indian Government relies solely upon
the text of Article 17 in a Marathi translation of the Portuguese text of 4
May 1779, which is said to have been registered at Goa and signed by the
Portuguese Viceroy. This translation of Article 17 states that the Marathas
granted a jagir. The three other texts of this Treaty do not mention this
word.
Assuming that a jagir or saranjam was provided for, it would still remain to
determine what form of that tenure was agreed upon. Was it a temporary and
revocable saranjam of revenues, or was it a saranjam irrevocably and finally
ceding villages and the ground on which they stood ? On this point neither
the explanations [p 79] furnished by the Parties nor the contradictory
documents on the record are fully conclusive. The use of the word jagir, as
employed in Article 17 in the Marathi translation of the Portuguese text,
does not indicate beyond dispute the legal character of the tenure
contemplated. The term had no single and legally precise meaning.
Our reasoning must proceed on the basis of the validity of the argument in
favour of full sovereignty and of that in favour of a saranjam. In either
case it is clear that the Portuguese authorities must necessarily have had a
right to pass through Maratha territory, whether to exercise their
sovereignty over the enclaves or to administer and collect taxes from the
villages. Whether the Marathas ceded sovereignty or granted a saranjam, they
were obliged to allow the rights granted to the Portuguese over their
territories to be exercised. It would be inadmissible to grant sovereignty
over certain territories or a saranjam of certain villages and then to set
up obstacles to the fulfilment of the obligations agreed upon. One cannot
accept an obligation and then withhold the means of performing the
obligation. There was thus an obligation binding upon the Marathas based
upon agreements which they had signed and that obligation involved
authorization of passage through their territory for the Portuguese.
It may safely be asserted that during the Maratha period, a period of 35
years, neither the Poona Government nor its principal officials ever
disavowed this obligation to allow the Portuguese to travel to the enclaves.
One reason for the concession (in addition to grounds of friend. ship) was
to facilitate the supplying of Daman, and that would have been impossible
unless passage to the enclaves was recognized and allowed. The importance of
the right of passage had also an economic basis. Numerous sanads referring
to this concession mention "villages adjoining Daman" (Annex C, Nos. 8, 9,
10, 14, 15 and 16). This implies the idea of contiguity, which in actual
fact was not achieved, and only thereafter were villages not adjoining Daman
considered. The lack of contiguity was to be made good by passage.
To do away with this passage is to infringe either territorial sovereignty
or the saranjam. That is not the situation contemplated in Article 17 and
the supplementary agreements. This situation had its origin in a treaty and
the Maratha Government which agreed to the conclusion of that treaty was
obliged to accept all its consequences, submitting to the restrictions it
involved within its territory.
Transit, or the fact of transit, during the Maratha period is a definite
right vested in the Portuguese State. It is an implied right, to be inferred
from the 1779 Treaty and from the supplementary agreements in favour of the
Portuguese State, even if it was not specifically expressed. The obligations
assumed by the Maratha [p 80] Government must accord with the rights it
recognized in the Treaty. Portugal therefore acquired the powers necessary
for effective exercise of the powers and rights expressly granted. Those
powers imply recognition of a right of passage.
This right appears to be even more essential in the case of a saranjam. How
could the holder of such a tenure enjoy it if denied the possibility of
visiting the enclaves in order to collect the taxes granted and to deal with
matters of village administration? Such communication is of the very essence
of such a tenure, which would otherwise be inconceivable.
The principle of implied powers was recognized by the Permanent Court in the
Memel Territory case (Series A/B, 1932, pp. 313-314), which deduces from the
sovereignty of Lithuania that Lithuania possessed powers not set forth in
the Memel Statute. In its Advisory Opinion on Repuration for Injuries
suffered in the Service of the United Nations, the International Court of
Justice also recognized that the Organization enjoyed implied powers (I.C.J.
Reports 1949, pp. 174, 178, 179, and 180).
The right of passage is essential to secure the rights of territorial
sovereignty or the saranjam rights possessed by Portugal. Mere toleration of
passage, or a temporary favour liable to withdrawal, would fail to make
possible enjoyment of the rights conferred by the aforementioned Treaty and
the agreements; they would be at the mercy of the Maratha Government. But
the rights granted to Portugal by that Government were not of such a nature.
If transit were merely tolerated, Portugal could not enjoy its rights in an
appropriate way. It is not to be supposed that the Maratha Government
decided to concede certain rights to Portugal, and at the same time to
reserve the power to adopt special measures to defeat the purpose for which
those rights had been granted.
***
This situation was respected and accepted by the British in 1818, when the
Maratha Empire and its territories came under their rule.
There is no doubt that at that time the British authorities carefully
investigated Portugal's position in the enclaves of Dadra and Nagar-Aveli
situated in their newly acquired territory. They could ascertain the facts
from the Maratha archives which were available to them. They enquired into
these with reference to a request by the Portuguese authorities in 1818 for
a customs exemption, but Portuguese sovereignty was not questioned (Annex C,
No. 35, Document 4). During the period 1818 to 1947 the British entertained
no doubt as to Portugal's sovereignty over these enclaves.
Accordingly, during the British period, no difficulty or obstacle was raised
concerning the existence of this obligation to allow [p 81] passage. The
British Government, when they succeeded to the Maratha territory, recognized
it.
In the Free Zones case, the Permanent Court implicitly recognized the
principle of the succession of local obligations of general interest.
France, "as Sardinia's successor in the sovereignty over the territory in
question", had to respect the system established by the treaties of
1815-1816" (Series A/B, No. 46, p. 145).
The jurisdiction of the Bntish authorities was confined in practice to
regulating the exercise of this right. The application of the right was
controlled in various ways, but the existence of the right was never
disregarded. This power of regulation was founded upon British sovereignty
over the short distance between Daman and the enclaves. It did not in
principle include the power of absolutely prohibiting the forms of passage
necessary for the exercise of sovereignty over the enclaves. The British
always authorized in that territory a usage adapted to the requirements of
this passage. It should be noted that passage was sometimes regulated by
agreement with the Portuguese authorities, especially in the transit of
police forces (Treaty of 1878 and Agreements of 1913, 1920 and 1940). By
this last agreement armed police not exceeding ten in number could pass,
provided intimation of their passage was given by post to the British
authorities within 24 hours of the passage. If any number exceeding ten were
required, the previous practice of obtaining concurrence was to be followed
(Indian Annex C, No. 57).
The regulations issued by the British Government were designed to define
passage, to govern the details of its exercise. Most of them were police
regulations laying down restrictions on, and, in exceptional cases,
prohibitions of freedom of transit. During the whole of the Bntish period
there were two prohibitions, in respect of Salt and alcohol. Such
restrictions are common and frequent where rights have to be regulated; it
is not permissible to infer that this governmental activity meant that the
rights did not exist. The same is true when this power of regulation is
applied to the right of passage in its different forms, either for the
purpose of maintaining order or to improve financial administration. Such
regulations, far from constituting a denial of the right of passage, are
strong confirmation of it and clearly define its sphere of application.
At one moment the British authorities even contemplated establishing a
corridor between the two Portuguese territories, but the plan was not
ultimately adopted. The proposal, however, corroborated the view, often
expressed in correspondence between the British and Portuguese authorities,
that the enclaves were in a special position and that their communications
required to be assured and facilitated. This cession of territory, a British
official said, "would give free access to the Portuguese pargana of
Nagar-Aveli" (Annex F, No. 58).[p 82]
Portugal's contribution to the cost of repairing a section of the road
leading to the enclaves, on British territory, in 1900 and 1926 appears to
confirm the necessity of this right of access to the enclaves.
The Portuguese authorities had no need to be continually claiming a right
that was recognized as theirs. In his Note of 27 May 1892 (Annex C, No. 41)
the Portuguese Governor asserts that "transit (between Daman and
Nagar-Aveli) was free while the Treaty of 1878 was in force, and it was so
before the Treaty". He adds that this was "the practice followed and
observed formerly, before the Treaty of 26 December 1878". This Treaty,
which remained in force from 1879 until 1892, established a general regime
for the territories in India of the two contracting parties; it ratified an
already established right of passage for purposes of communication with the
enclaves. When the Treaty of 1878 came to an end, the right of passage
continued to exist.
It is not disputed that throughout the British period passage to the
enclaves was maintained on the basis of the established regulations. That
situation continued peacefully and without interruption for 130 years.
Throughout that long period the road between Daman and the enclaves remained
open; no disagreement arose between the two Governments on that point.
All this time a deliberate intention was manifested, either implicitly or
expressly in agreements and regulations. This indicates a common awareness
reflecting the conviction of the two Governments as to the right of passage
to the enclaves. It must be regarded as evidence that the British
authorities recognized that right. What "is" becomes what "must be".
The concept of effectiveness is of great importance in international law. In
the present case the effectiveness of the fact of passage should be regarded
from the standpoint of its duration and of its acceptance by the two
Governments concerned. This effective exercise of passage to the enclaves,
regularly kept up, contributes towards the establishment of a right.
This notion of effectiveness has been regarded as a decisive factor in the
solution of certain problems arising out of relations between States. The
Court relied upon it in the Nottebohm case (I.C.J. Reports 1955, pp. 56 et
sqq., 62 and 299), and, at at an earlier date, in the Minquiers and Ecrehos
case (I.C.J. Reports I953, pp. 60-66, 67-70).
Legal opinion is faithful to this concept.
The continual repetition of an act over a long period does not weaken
thisusage; on the contrary, it strengthens it; a relationship develops
between the act and the will of the States which have authorized it. The
recurrence of these acts over so long a period engenders, both in the State
which performs them and in the State which suffers them, a belief in the
respect due to this long-established practice (Article 38 (1) (b) of the
Statute of the Court). [p 83]
A right of passage, like territorial sovereignty, may be acquired on the
basis of an effective practice. A fact observed over a long period of years,
as in the present instance, acquires binding force and assumes the character
of a rule of law.
The Portuguese regularly travelled to and from the enclaves without
opposition for 170 consecutive years. The effectiveness of access to the
enclaves created a legal status quo which no State can unilaterally
infringe. This legal status quo is the work of States over a long period of
years and has the force of an agreement. A change in the situation would
alter a practice and a usage traditionally admitted, accepted and tolerated.
A certain order was established in this matter and was recognized by the two
States, its purpose being to ensure certain relations between them in order
to facilitate the discharge of their governmental functions. A breach of
that order committed without a sound legal excuse creates an unlawful state
of affairs.
The Permanent Court of Arbitration in one of the grounds of its Award given
on 23 October 1909 in the Grisbadarna case said, in particular, that "it is
a settled principle of the law of nations that a state of things which
actually exists and has existed for a long time should be changed as little
as possible" (English translation from Scott, The Hague Court Reports, p.
130).
Passage is not a simple fact, but a legal fact, connected with a legal order
of things, established, moreover, in concrete form by regulations issued by
the State through the territory of which passage is to be effected. Rights
and obligations have been created between the two States concerned. For the
State which grants passage there arises a legal obligation towards the State
which benefits therefrom; the latter State is therefore entitled to claim a
certain legal protection if it feels that the obligation has been
disregarded.
***
From the first day of India's independence in 1947 until 1953, the jus
communicationis in respect of the enclaves was exercised without impediment.
Indeed India acknowledged Portuguese territorial sovereignty within the
enclaves. This is evidenced by the Indian Government's request in 1950 and
1953 for the transfer of the Portuguese territories. At the very beginning
of this period regulations were even passed to facilitate it: customs duties
were abolished and so was the Salt ban.
The contribution by Goa towards the construction of the Lavacha culverts, to
avoid interruption of communications between Daman and Silvassa, is
confirmation that the two Governments shared the view that these
communications were necessary.
Even when relations between the two Governments became critical in 1953 and
1954, it was never suggested that the right of passage [p 84] did not exist.
On 6 August 1954, when the Portuguese Government explicitly claimed that
right, the Indian Government made no reservation. The measures then taken
against passage were none of them based upon legal arguments. India did not
contend that Portugal had no right of passage. That contention was put
forward for the first time in the present proceedings.
The Indian Government admits that it did not stand upon its "strict legal
rights" in the matter of transit between Daman and the enclaves until 1953.
"These rights", it adds, "had been well recognized throughout the British
period." (Rejoinder, paragraph 417.) But these "strict legal rights" did
recognize a certain, though much restricted, right of passage.
It is impossible to imagine small enclaves like those of Dadra and
Nagar-Aveli, with an area of less than 500 square kilometres, without
communications along a road of 13 km. 200 m. through the enclaving
territory.
All existing enclaves known to history have always enjoyed a right of
passage, expressly or tacitly. It would be impossible to discover an enclave
without that right. An enclave necessarily presupposes a right of access to
it for the exercise of governmental functions on its territory.
If the principle of international freedom of transit scarcely encounters any
longer any prohibition of passage on the basis of territorial sovereignty,
still less can that sovereignty be adduced as a reason for withdrawing a
long-practised right of transit to an enclave. The right of passage derived
from the 1779 Treaty and from more than a century of practice has its
foundation in local custom; there is therefore no need to consider whether
it finds support in other sources such as general custom or the general
principles of law recognized by civilized nations.
Consequently, the first of the final submissions of the Portuguese
Government should be upheld.
***
The right of passage thus consistently recognized began to meet with certain
impediments, particularly as from the second half of 1953; this was when a
crisis arose in the diplomatic relations between India and Portugal due to
the refusal of the Portuguese Government to agree to the transfer of its
Inidian territories. The formalities required for the exercise of passage
were at that time greatly increased. It is sufficient to mention this fact
without giving details.
After the closing of the Indian Legation in Lisbon on II June 1953 the
Governor of Daman and European Portuguese officials were required to obtain
passports and visas (Memorial, Annexes 35 [p 85] and 36), a change in the
status quo ante against which the Portuguese authorities protested
(Memorial, Annexes 37 to 40).
On 17 July 1954 the Consul-General of India at Goa communicated a number of
changes "in the concessions hitherto granted to the Portuguese
Administration of Daman and Nagar-Aveli"; one of these restrictions referred
to the ban on the transit of firearms, ammunition and military stores. The
prohibition also covered the passage of armed police and Portuguese military
personnel. These were departures from the established system of prior
authorization in this respect in each instance. The Indian Government thus
assumed over this form of passage a discretionary power which did not
previously exist. This innovation of the Indian Government ignored the right
of passage. There was no general prohibition in the matter, which would have
been a serious infringement of the right of passage. This right was accepted
but made subject to an authorization not left to the unfettered discretion
of the Indian Government. The fact that the exercise of a right requires
authorization does not mean that the right is non-existent; on the contrary,
it often implies that it does exist. The permission does not create the
right, it simply enables it to be exercised. Authorization was required
before the passage of armed forces could be exercised, in order that
consideration might be given to the conditions under which such action was
to take place. India was bound to settle each request for authorization in
good faith and with due regard to the purpose of such passage, uninfluenced
by considerations extraneous to that purpose.
The formality of prior authorization is perfectly consistent with the
existence of a right of passage.
The Charter of the United Nations envisages a right of passage for the armed
forces of the Organization across the territories of its Member States, in
accordance with special agreements concluded with the Security Council
(Article 43, paras. I and 2). Those agreements might establish the need for
authorization by the State through the territory of which passage is to be
effected or for notification to that State; but such a formality would not
negative the right.
That was the situation expressly provided for in Article XVIII, paragraph 3,
of the Treaty of 1878, which recognized the passage of armed forces of the
Contracting States across their respective territories, subject to
authorization. Both States had a right to this authorization. If permission
was granted, nothing stood in the way of passage; if it was refused, the
objections at that time to the exercise of passage were pointed out. In both
these situations transit continued to be a right.
Similarly, the passage of warships through territorial waters which
constitute international routes is regarded as a right derived from a
customary rule of international law, and there is nothing to prevent a
riparian State, in the regulation of that right, from [p 86] including in
its regulations the requirement of prior notification or authorization. The
right of passage subsists none the less.
In the night of 21/22 July 1954 a number of persons entered the Dadra
enclave from Indian territory; the Portuguese authorities were divested of
their functions. In two Notes dated 24 and 26 July the Portuguese Government
requested the Indian Government to permit the passage of the forces
necessary to restore order; on 28 July the latter Government categorically
rejected this request for the transit of troops and police (Memorial, Annex
52).
On 29 July the enclave of Nagar-Aveli was entered in its turn; there, too,
the local authorities were deposed and rebel elements occupied the enclave,
which is still in their power.
No satisfaction was obtained from requests made by the Portuguese Government
to the Indian Government for permission to send delegates of the Governor of
Daman and of third powers as impartial investigators and observers. The two
enclaves were thus left without any contact with Daman. The exercise of the
right of passage was definitely suspended in both enclaves.
The Indian suspensions of passage thus preceded the events of July 1954 and
followed immediately thereon. The Government of India therefore failed to
comply with the obligations incumbent upon it by virtue of Portugal's right
of passage.
***
In the third of its final submissions Portugal asks the Court:
"(a) to hold that the arguments of India set out above under A, B and C are
without foundation; (b) as to the argument of India set out above under D:
1. If the Court is of opinion that the above-mentioned conditions which must
be satisfied to justify the suspension of the passage of Portuguese armed
forces are not fulfilled,
to adjudge and declare
that India must end the measures by which it opposes the exercise of the
right of passage of Portugal;
2. If the Court is of opinion that the above-mentioned conditions which must
be satisfied to justify the suspension of the passage of Portuguese armed
forces are fulfilled,
to adjudge and declare
that the said passage shall be temporarily suspended; but that this
suspension shall end as soon as the course of events discloses that the
justification for the suspension has disappeared; [p 87]
that, during such suspension, India must abstain from any measure which
might strengthen the position of the adversaries of the lawful Government in
the enclaves and thus provoke the aggravation or prolongation of the
circumstances relied upon in support of that suspension;
that there is no legitimate reason entitling India to ask that the other
forms of the exercise of the right of passage should likewise be suspended."
It is no part of the Court's duty in the operative part of its Judgment to
adjudicate upon the arguments referred to under (a) and (b), which can only
be considered, if this is necessary, in the reasoning of the Court's
Judgment.
It is clear that this final submission of the Portuguese Government includes
two claims, I and 2. Both are conditioned by the present state of affairs in
the enclaves and relate to the passage of Portuguese armed forces.
A preliminary observation is necessary with regard to the present situation
in the enclaves.
It is a fact which cannot be overlooked in these proceedings that the
population of the enclaves, in the month of December 1954 or perhaps before,
set up for itself a free government in the territory of the enclaves. This
factual situation existed when, on 22 December 1955, the Application was
submitted to the Court.
The right of passage regarded as a whole arose and was exercised in normal
periods when the enclaves were indubitably under effective Portuguese
sovereignty. This was the position from the year 1783 until July 1954. This
long practice was never disturbed by facts putting Portuguese authority in
issue. The right of passage, in its different forms, was exercised in
peaceful circumstances.
The right was not granted in the course of the long practice referred to
previously for a situation such as that which has arisen in the enclaves.
The existence of a de facto government there is a contingency not
contemplated and one which is new in the habitual practice of the right of
passage.
The changes which have occurred in the enclaves affect the causes which gave
rise to the right of passage and must naturally have their effect on the
right of passage itself or on the ways in which it may be exercised. These
new facts must lead to holding either that the right which has been
recognized must be suspended or that it has become extinguished. In either
case, it must be concluded that the passage claimed must be regarded as
incapable of exercise the present situation.
(Signed) Armand-Ugon.
[p 88]DISSENTING OPINION OF JUDGE MORENO QUINTANA
[Translation]
To my great regret I am unable to associate myself with the opinion of the
majority of my colleagues of the Court, who, on the merits of the case, have
admitted, though within limits and incompletely, that Portugal has a right
of passage over Indian territory. There follows from the majority opinion a
legal premise that I cannot accept. That premise is the theoretical
continuance of a de facto situation which was in my opinion discontinued by
what occurred in the enclaves in 1954. It implies, by definition, a
recognition that territorial sovereignty can be acquired by prescription, a
private law institution which I consider finds no place in international
law. Further, the majority decision takes its exclusive stand upon a date
which does not allow a settlement of the whole of the problem submitted to
the Court.
My dissenting opinion is based upon considerations of fact and of law which
I append hereto.
By an Application of 22 December 1955, the Government of Portugal instituted
proceedings against the Government of India and asked the Court to recognize
a right of passage for persons and goods, including armed forces, "between
its territory of Daman (coastal Daman) and its enclaved territories of Dadra
and Nagar-Aveli and between each of the latter", in order to ensure, without
restrictions or difficulties, "the effective exercise of Portuguese
sovereignty in the same territories". It also asked the Court to declare
that India was violating its international obligations by preventing the
exercise of that right and to adjudge that India should put an end to this
de facto situation. The applicant's Memorial amplifies this claim and
supplies the legal grounds which it considers applicable to the case.
In this Counter-Memorial the respondent argues that the Portuguese claim is
vague and dubious, that the right of passage claimed lacks a legal basis,
that no proof has been furnished of any local usage and that, even if it
were otherwise, the said basis or proof would be irrelevant and inapplicable
to the circumstances of the case. The applicant in turn repeated its
submissions in its Reply, declaring that it did not question India's
sovereignty within its territory and was only asking that India should not
obstruct communications with the Portuguese enclaves.
A wealth of documentary evidence going back to the eighteenth century was
furnished by each of the Parties in support of their [p 89] claims. It is
mainly on the strength of this evidence that the applicant must establish
the grounds for the right of passage it claims, since it cannot deny that in
principle the passage of persons and goods through a State's territory lies
within the domestic jurisdiction of that State.
***
The Court must first of all, and indeed exclusively, ascertain whether a
right of passage existed in Portugal's favour for communication between
Daman and the enclaves and between the enclaves themselves. For, if it did,
India would be failing to observe its international obligations by
preventing Portugal from exercising that right. The existence of a right in
international relations is a fact which, when contested, must be proved by
the party which invokes it. That is an elementary principle of procedure.
However, the Court's task is not so simple as that, owing to the frequent
changes made by the applicant in its submissions and to the uncertainty it
has betrayed at different stages in the case concerning the foundation of
its right. At one time, as in its Application, it asks for full recognition
of a right, at another, in the Memorial, it reduces the claim, and again, in
its Reply, limits the exercise of that right to regulation by the
territorial sovereign and admits that the passage of armed forces could be
temporarily suspended if it were liable to create disorder within the State
passed through. And it is precisely in the event of a disturbance of the
situation in the enclaves that the passage of troops is found necessary in
order to restore Portugal's alleged sovereignty.
A right of passage is not an abstract construction. It cannot be defined in
the varying, inexact and mutually contradictory terms employed by the
applicant. The right either exists in law or it does not. Its existence
cannot depend upon fluctuations and fine distinctions dictated by
circumstances. In particular, the passage of organized military units is a
question that cannot be separated from the immunity they enjoy on or in
transit through foreign territory. They represent the authority of the State
itself. It is for that reason that customary international law assigns to
them the immunity necessary' to the performance of their duties. In my
opinion that immunity is a necessary legal condition and cannot be waived.
In a word, a right that is on each occasion made conditional upon the
judgment of the local authority in the place where it is exercised is a
right in name only. It does not constitute a legal right; rather it is a
faculty tolerated by the territorial sovereign.
In the international sphere the normal method of acquiring rights or of
contracting obligations takes the form of an agreement, which [p 90] in its
widest sense is termed a treaty. These rights or obligations may also be the
consequence of a custom that has become established between the parties from
a conviction that they are applying the law. They may even follow, and
Article 38 of the Court's Statute acknowledges this in its paragraph I (c),
from a general principle of law recognized by civilized nations. In any
case, although I agree that that Article establishes a legal order of
precedence in the application of sources of international law, I consider
that the validity of a general principle may take the place of international
custom, and the existence of international custom the place of a treaty.
But the applicant fails to supply a firm and conclusive basis for its right
when it relies at one time upon a treaty, at another on custom, on a
principle or, alternatively, on legal doctrine. According to its argument,
each of these sources is of itself a sufficient basis. It also confuses
these sources when it says that the right it claims rests at the same time
on the three main sources mentioned, and it even invokes an historical title
said to be conferred upon it by the practice of two hundred years. Its
attitude could not be more eclectic.
However, Portugal's principal title is the treaty known as the Treaty of
Punem, concluded in 1779 with the Maratha ruler, who is said to have granted
to the applicant the right of passage it is claiming. Analysis of this
treaty is of the first importance to an international court if it can prove
or disprove the soundness of this basis of the case. Indeed, the application
of any other source than the treaty is logically conditional upon whether
the treaty did or did not transfer to Portugal sovereignty over the enclaves
of Dadra and Nagar-Aveli. If it did not, no right of passage could derive
from an act of territorial usurpation. At the hearing of 2 October,
Professor Bourquin expressly acknowledged that the right of passage that
Portugal claims is only a corollary of its sovereignty over the enclaves.
This method of procedure may be found useful whenever it can save the Court
from treading upon uncertain ground. I consider to be uncertain ground the
reference in this case to the general principles of law recognized by
civilized nations and even the reference to general custom viewed as
granting erga omnes a right of passage through territory of third States
linking enclaved territories under the system of international law with the
metropolitan country. This method also avoids consideration of a theory so
controversial and vulnerable as the theory of so-called international
servitudes. Although the applicant denies this—the question is one of legal
terminology—it accepts it by implication when it appeals in support of its
claim to the general principles of law. [p 91]
***
According to the applicant, Article 17 of the Treaty of Punem established
Portugal's sovereignty over the enclaves of Dadra and Nagar-Aveli and proved
the intention of the Parties to create a right of passage between Daman and
those enclaves. A treaty can, of course, create a rule of law, such as a
right of passage, even by implication, but in this case the main proposition
to be proved is the transfer of sovereignty. A right of passage through
foreign territory in order to communicate with an enclave can be based only
upon the title of territorial sovereign. In neither text of the treaty
presented to the Court is there any question of that right having been
created. Their terminology is ambiguous and leaves room for doubt of all
kinds. But neither of them reveals any act of such positive effect in
international relations as the transfer of territorial sovereignty.
Restrictions upon the independence of States cannot be presumed, said the
Permanent Court in the celebrated Lotus case (see Judgments, Series A, No.
10, p. 18).
It might even be asked whether the said agreement really constitutes a
treaty, since there is no document in existence ratified simultaneously by
the two contracting parties and which may be regarded as its authentic text.
However, even a cursory study of the situation shows that the exchange of
documents—the Marathi text of 4 May 1779 and the Portuguese text of 17
December of the same year—was no doubt the expression of a common agreement
creating mutual rights and obligations between two legal persons recognized
as such in their international relationships. Article 6 makes it clear that
a bilateral treaty was concluded and the documentary evidence produced also
shows by many instances that it was the intention of the parties to conclude
a treaty and that they were aware of having done so. It took the legal form
of an exchange of notes and the jurisprudence of the Permanent Court
accepted this form as valid in its Advisory Opinion on the Austro-German
Customs Régime (see Judgments, Series A/B, No. 41, p. 47).
What does this agreement Say? I will take my stand on the Marathi
translation from the original Portuguese, submitted in this case by the
respondent; it bears the signature of the Portuguese Viceroy, José Pedro da
Camara, and is to be found at Annex F. No. 23. Article 17, which is the
decisive one, says: "The Firangee State (Portuguese State of India)
entertains friendly sentiments towards the Pandit Pradhan (the Maratha
ruler); the envoy conveyed assurances. Therefore, it is agreed that the
Pandit Pradhan should assign towards Daman from the current year a jagir of
the revenue of twelve thousand rupees in Prant Daman. Accordingly, a sanad
listing the villages be given to the Firangee State by making a separate
agreement." This text is clear, so clear as fully to explain [p 92] two
important points discussed by the Parties: the nature of the instrument
concluded and that of the concession granted. Firstly, the expressions 'lit
is agreed" and "separate agreement" show beyond doubt that the instrument is
a treaty in the wide sense given to this word by international jurisprudence
and doctrine. Secondly, the word "jagir" describes its purpose, which is
determined by the friendly sentiments of the Portuguese towards the
Marathas. In any event, comparing one text with the other, they do not
differ much as to what was given by the Marathas to the Portuguese:
according to the former, a jagir, according to the latter, a contribuçao. In
neither text is there any vestige of a transfer of sovereignty. :
It has been established that the Mogul word jagir, corresponding to the
Marathi term saranjam, means the granting of a fiscal revenue and not a
transfer of territorial sovereignty. The Parties, however, are not agreed
upon the import of that concession. India maintains that it is a favour
granted for an uncertain tenure and revocable at the will of the donor;
Portugal declares that there were also saranjams that were hereditary,
perpetual and irrevocable, such as those guaranteed by a treaty, and that
this is one of them. It is not for the Court to adopt a position towards a
dispute of purely historical interest. But it may well observe that none of
the characteristics invoked by Portugal appears in the text of Article 17 of
the Treaty of Punem. Where there is doubt, the Court must stand by the
narrower interpretation. This the Permanent Court laid down in its Judgment
on the Mavrommatis Concessions (see Judgments, Series A, No. 2, p. 19). And
that interpretation in the present instance is the one given by the
beneficiary of the concession. Accordingly, the Treaty of Punem expresses a
promise by India to give sums of money as a token of friendship and not a
transfer of sovereignty over villages which were not even named.
Nor is there any reference to the assignment to Portugal of a right of
passage in order to collect its jagir. The Parties saw no need to mention
this in view of the friendly sentiments, the aid and military assistance of
the Portuguese, all of which formed the consideration for the concession
granted by the Marathas. It could not be supposed that the collection of
jagir would be obstructed by the Maratha ruler. Further, the villages which
were to furnish the annual revenue to Portugal were not mentioned in the
treaty; they were to be listed later in a sanad. That administrative act of
the Maratha sovereign was free to decide and regulate the terms of the
grant. The first annual payments were not collected by the Portuguese from,
any village, being paid directly by the Marathas. It cannot therefore be
imagined that the said right of passage was contemplated by the Treaty of
Punem. In any case it was a question to be settled later, should it be
necessary. And it was not so settled, [p 93] since passage continued to
exist as a necessary corollary to the collection of jagir. and did not
thereby constitute a separate right in Portugal's favour. By 1954, however,
the position had changed. The friendship promised by the Portuguese to the
Marathas in 1779 had given way to a cold war between India and Portugal. The
Indians had closed their Legation in Lisbon because of Portugal's refusal to
negotiate the surrender of its sovereignty over parts of India. As the
result of circumstances the mutual rights and obligations under the Treaty
of Punem were extinguished. There could not be a better application than
this of the rule recalled by Emerich de Vattel in his well-known treatise:
Omnis conventio intelligitur rebus sic stantibus. The Treaty of Punem was no
more; Portugal no longer claimed the payment of jagir; passage between
Daman, Dadra and Nagar-Aveli had no further raison d'être:
The system established by the Treaty of Punem was completed by two later
agreements between the Portuguese and the Marathas concluded on 29 May 1783
and 22 July 1785. Under the former the promised fiscal revenue was to be
collected from the pargana of Nagar-Aveli, under the latter, from the
village of Dadra. This second agreement established in No. II of its
accompanying capitulations —their authenticity is questioned by India—an
obligation upon Portugal to suppress any revolt that might break out in the
pargana. From this it may be inferred that neither that obligation nor any
similar one would have been specially inserted in those capitulations if
Portugal had received the pargana with full sovereignty. The suppression of
revolt in one's own territory is a function implicit in territorial
jurisdiction.
It was further claimed by the applicant that, even if the Treaty of Punem
did not transfer to the Portuguese sovereignty over the enclaves, they had
acquired it by possessio longi temporis. I cannot consider that argument,
the question not having been included in the subject of the dispute.
***
The history of this case shows that Daman has been in full Portuguese
possession since the sixteenth century. Various later treaties and
agreements seem to have recognized this sovereignty, which is not a direct
issue in the case. The fact, however, is important in estimating the extent
of the international custom which is supposed to have created the right of
passage between Daman and the enclaves of Dadra and Nagar-Aveli. This custom
is claimed to have existed for two hundred years. [p 94]
For the purpose of examining the characteristics of passage between Daman
and the enclaves, the story of Portugal's relations with India may be
divided into three periods. The first is the Maratha period, extending from
1779 (the date of the Treaty of Punem) until 1818, when Great Britain
annexed the Maratha Empire. This period, according to the applicant, is that
in which the rule of custom took shape. The second and longest of the three
periods is from 1818-1947, at which last date India gained its independence.
This, the British period, is supposed to be the period during which the rule
was confirmed by the successors to the Marathas. The third period is the
period of Indian independence, from 1947 to 1954, this last year being the
year in which occurred the events that terminated Portuguese passage between
Daman and the enclaves. It is in this last period that the rule is said to
have been applied. Each of these historical stages really reveals the
exercise of passage in a different light, and it must be analysed separately
in order that the necessary conclusions may be drawn.
Study of the Maratha period does not tell us very much about the recognition
of a right of passage in favour of the Portuguese. No documents and no facts
support the theory during this period. The Marathas did not oppose the
passage of Portuguese officials, private persons or goods. To have done so
would have been abnormal since they had surrendered to Portugal the revenues
of the villages of Dadra and Nagar-Aveli and they were bound to provide the
Portuguese with the means of collecting them. On the other hand, they
granted them no authorization for the passage of troops. It therefore does
not appear that the Marathas had abandoned their de facto and de jure
sovereignty over the enclaves despite the fact that they issued the
necessary permits for every such passage. On three occasions the Marathas
even confiscated the said revenues, which seems to show that they had no
intention of surrendering sovereignty. In a word, an examination of this
period shows that passage always took place with the agreement of the
Maratha sovereigns. The applicant furnished no evidence that its alleged
right of passage was exercised independently of the express will of the
territorial sovereign in every case.
During the British period passage between Daman and the enclaves became a
more or less regular usage, either out of consideration for a country bound
to Britain by an ancient alliance or from ignorance of what was Portugal's
real position in law. At the same time there is no indication that Great
Britain recognized the passage it granted to Portugal as though it were a
right. The British do not seem to have renounced exercise of the powers of
the territorial sovereign any more than the Marathas did. Daman and the
coastal possessions were surrounded by a frontier cordon. The British
Government required that Portuguese officials of European origin [p 95]
passing through Indian territory from one Portuguese possession to another
should carry passports and visas. It must be remembered that, under the
treaty concluded on 13 June 1817 between the British East India Company and
the Maratha Empire, sovereignty over this part of Indian territory passed to
the British Crown, and that situation continued until 15 August 1947 when
Great Britain recognized the independence of India. The obligations of the
territorial sovereign passed to the conqueror in application of the des
governing succession by States. No legal act by the British Government
altered the status juris established by the Maratha rulers with regard to
the so-called enclaves. Portugal could not claim any more rights than it had
previously possessed, nor could Great Britain arrogate such to itself. In
those circumstances no usage in the matter of passage during this period
could be transformed into such a practice as to create an international
custom invocable against any territorial successor.
When it became independent, India made no fundamental change in the
established system. We must not forget that India, as the territorial
successor, was not acquiring the territory for the first time, but was
recovering an independence lost long since. Its legal position at once
reverted to what it had been more than a hundred years before, as though the
British occupation had made no difference. Dadra and Nagar-Aveli figure as
open enclaves within Indian territory. Goods were imported from Daman to the
enclaves as though they belonged to that territory. No insuperable
difficulty arose until 27 Febmary 1950, when the Indian Minister in Lisbon
handed to the Portuguese Government an aide-memoire proposing that
negotiations should be started to fix the conditions for the handing over of
the Portuguese territories in India. After Portugal refused, the Indian
Government on 26 May 1953 notified the Portuguese Government of the
termination of its diplomatic mission to Portugal. From that moment the
Government of India began to impose a number of restrictions which seriously
hampered communications between Daman and the enclaves. Those communications
were finally cut on 21 July 1954 in consequence of what happened in the
enclaves.
***
To support the Portuguese claim in this case, which implies survival of the
colonial system, without categorical and conclusive proof is to fly in the
face of the United Nations Charter.
As judge of its own law—the United Nations Charter—and judge of its own
age—the age of national independence—the International Court of Justice
cannot turn its back upon the world as it is. [p 96]
"International law must adapt itself to political necessities", said the
Permanent Court of Arbitration in its award on indemnities to Russian
individuals (n xi 1912). That is the reason why the Charter made legal
provision to cover the independence of non-self-governing territories.
My conclusion is that, as the Government of India submits, there has never
existed a Portuguese right of passage between its costal possession of Daman
and the enclaves of Dadra and Nagar-Aveli nor between those enclaves. In my
opinion the claim of the Portuguese Government should have been dismissed.
(Signed) Lucio M. Moreno Quintana.
[p 97]
DISSENTING OPINION OF JUDGE SIR PERCY SPENDER
I greatly regret that I cannot agree with the Judgment of the Court on
certain important issues, though I do agree with certain of its conclusions.
As to the Fifth and Sixth Preliminary Objections of the Republic of India to
the jurisdiction of the Court, I agree that these cannot be sustained.
On the merits I agree: that Portugal in 1954 had acquired by local custom a
right of passage to the extent necessary for the exercise of Portuguese
sovereignty over the enclaves, subject however to the regulation and control
of India, which right extended at least to the passage of private persons,
Portuguese civil officials and goods in general.
I am unable, however, to agree that no right of passage had been acquired by
it in respect of armed forces or armed police or arms and ammunition, or
that India did not act contrary to its obligation resulting from the right
of passage which the Court has found to have been acquired by Portugal. I
shall state my reasons.
***
I do not think it necessary to determine whether, under the Treaty of Punem
and the Sanads of 1783 and 1785, sovereignty over the enclaves became vested
in Portugal. Whatever was the precise nature of the grant made thereunder,
even if it were one in jagir or saranjam, merely fiscal in character and
unilaterally revocable at any time in the absolute discretion of the
Marathas, the grant whilst it endured necessarily implied some right of
passage in Portugal between Daman and the villages of Dadra and Nagar-Aveli,
and the record establishes that during the Maratha period it did imply a
right of passage which, for all practical purposes, was under the
circumstances then existent, in substance the same as would have resulted
had the grant been one of sovereignty over these villages.
The grant was made for the purpose of supporting the Portuguese fortress of
Daman. The authority of the Portuguese within the villages included the
collection of taxes, the maintenance of order, the punishment of offenders
and the power to quell rebellion (see Capitulations of 1785, paras. 3, 4, 7
and II, Annex 8 to Portuguese Memorial; see also Indian Annex F. No. 40 at
p. 181). In point of fact, the Portuguese during the Maratha period
exercised passage between Daman and the villages not only for administrative
per-[p 98]sonnel, but also for armed troops and armed police, to an extent
sufficient to enable them to exercise their authority over them.
This authority remained somewhat precarious until about 1814. From then
onwards, however, it appears to have been reasonably entrenched.
The record further establishes that the passage between Daman and the
villages which in fact took place, was effected in exercise of a right
acknowledged by the Marathas. Taxes were levied in kind. Timber, rice and
other products were transported to Daman; herds of cattle were driven in the
same direction. Stall-holders in the villages brought supplies from Daman.
It was necessary for Portuguese officials frequently to pass from Daman to
the villages and vice versa; in fact they did so pass and passed freely.
When occasion demanded, military officers, men and equipment were sent to
them from Daman for the purpose of preserving order.
The Maratha period was in 1818 followed by that of the British.
It has been contended that the British, from the commencement of their rule,
refused to be bound by any rights granted to the Portuguese by the Marathas
under the Punem Treaty and the Sanads of 1783 and 1785. In my view, the
record fails to support this contention. It is true that the British did
refuse to acknowledge or be bound by certain exemptions from customs and
other taxes on "all articles and timber" which might be exported from
Nagar-Aveli to Daman, which exemptions the Portuguese claimed had been
granted to them as the result of the Treaty, but the record does not support
the view that the British refused to accept the Treaty and the Sanads.
At the very commencement of the British rule the Portuguese claimed that
sovereignty over the villages had been ceded to them by the Marathas. It is
improbable that the British would not have made any enquiries of their own
in relation not only as to the Treaty and the Sanads, but also as to the
practice as to passage between Daman and the villages which had existed
under the Marathas. The Maratha records relating to the area in which the
villages lie, for ten years up to 1818, running into some hundreds of
bundles, were despatched from Poona to the British in Bombay on 6 December
1818. There is specific evidence that the British did make some enquiries
both in 1819 and 1859. It is in any event beyond dispute that, from the
commencement of and throughout British de, whatever the premises on which
their conduct was based, the British treated the Portuguese as sovereign
over the villages (hereafter called "the enclaves"). It is a proper
inference from the record that the British were aware of the practice as to
passage which was in existence in 1818 and were aware that the Portuguese
were exercising that passage under a claim of right. [p 99]
***
In order to determine whether Portugal acquired by custom any right of
passage and, if so, the nature and extent of the same, it is necessary to
examine the practice which was from time to time followed.
The proper way of measuring the nature and extent of any such custom, if
established, is to have regard to the practice which itself both defines and
limits it. The first element in a custom is a constant and uniform practice
which must be determined before a custom can be defined.
The record in my opinion establishes:
1. For the first two or three decades after 1818 there was no essential
change in the practice in relation to passage which had been followed during
the Maratha period.
2. The British—as subsequently did the Republic of India— recognized
Portuguese sovereignty over the enclaves.
This is established beyond all reasonable controversy. The conduct of the
British and India is wholly inconsistent with any other conclusion. The
record is heavy with instances of this recognition. [During the British
period: Counter-Memorial, Vol. II, Indian Annexes at pages 158, 164, 166,
167, 169-173, 174, 225, 251, 266, 565, 584; Rejoinder, Vol. II, Indian
Annexes at pages 226, 233, 235, 249. During the Indian period:
Counter-Memorial, Vol. II, Indian Annexes at pages 398, 401, 402, 407;
Rejoinder, Vol. II, Indian Annexes at pages 250-252, 253, 267-268.] The
notes from India to Portugal of 1950 and 1953, seeking the transfer by
Portugal to India of all the former's possessions in India, in themselves
provide powerful evidence of India's recognition.
During the oral hearing, on 12 October, Counsel for India admitted the
existence of Portuguese sovereignty. At a later date, on 29 October, when
Counsel for Portugal put the following question "Does India admit that
Portuguese sovereignty still subsists", it was not disputed by India that
Portugal still had sovereignty over the enclaves.
As between the Parties to and for the purposes of this dispute, Portugal's
sovereignty is not open to question.
This recognition of sovereignty in Portugal, both by the British and India,
is in my view the central fact in this dispute. [p 100]
3. Despite the closest regulation and control from time to time of many
aspects of passage, the constant and uniform practice of the British was to
allow passage in respect of all six categories mentioned in the Judgment of
the Court to an extent which was at least sufficient to enable Portugal
continuously to administer the ènclaves.
The Court holds, and I agree, that the practice followed during the British
period and continued during that of India, resulted in Portugal acquiring by
local custom a right of passage in respect of private persons, civil
officials and goods. It is my opinion, however, that the practice resulted
in a custom by virtue of which Portugal acquired a right of passage not only
in respect of these categories, but also in respect of armed forces, armed
police, and arms and ammunition.
These three categories require separate examination.
***
Movement of members of the armed forces passing between Daman and the
enclaves was', at least after the middle of the nineteenth century, not very
great. They appear to have discharged in the main strictly police functions.
The numbers who exercised passage at any given time were small. Their
functions related primarily to the maintenance of internal order within the
enclaves; passage between Daman and the enclaves, and between the latter,
was largely, if not principally, in relation to relief of detachments,
posting or re-posting, proceeding on leave, escorting government funds or
prisoners and other duties of a police character. The movement of armed
police presents a somewhat similar picture.
The constant and uniform practice during the British period was to permit
under regulation and control the passage of members of the armed forces and
police officials and arms and ammunition. There appears never to have been
an occasion when this passage was not permitted.
In 1947 India succeeded the British as sovereign over the intervening
territory. From that time onwards, until shortly before July 1954, when the
events arose from which this dispute stems, the practice which had been
followed during the British period was continued.
***
The right of passage claimed by Portugal is an indivisible one which was,
however, in its exercise subject to regulation and control [p 101] by India.
Portugal did not claim one right of passage for goods, another for private
individuals and a separate one for each of the six categories into which,
for the purposes of the Court's Judgment, the passage has been divided.
This, however, presents no difficulty so long as the indivisible character
of the claim made by Portugal is kept constantly in mind. Unless, however,
this is done, distinctions in degree between the regulation and control of
passage exercised by the British and later by India, on different occasions
and from time to time in respect of one or some of these different
categories, may lead to impermissible conclusions as to the nature and
extent of the right itself.
In reaching its conclusion that Portugal did not have in July 1954 any right
of passage in respect of armed forces, armed police or arms and ammunition,
the Court has pursued certain distinctions which it sees between one set of
categories and another; which in my opinion are but distinctions of degrees
of regulation and control; and has treated these distinctions as decisive.
This has led it to reach one conclusion in respect of what may conveniently
be described as the first three categories and an opposite one in respect of
the other three.
***
There cannot be any real dispute that it was the constant and uniform
practice during the British and post-British periods to permit passage in
respect of all six categories.
Each of these categories was at different times subject to different
regulation and control. The passage of private persons and civil officials
was, until just prior to the events which occurred at Dadra, subject to
routine control, although the frontier controls included during one period,
1857-1863, the prohibition of entry without a licence of all foreigners;
during the first World War the reporting by Portuguese Europeans to the
police on arrival in Indian territory; and from 1935 the requirement of all
-Portuguese not domiciled in India to carry a passport when entering Indian
territory from a Portuguese possession over the land frontier
(Counter-Memorial, para. 46). The passage of goods in general was subject at
certain times to customs regulation and such regulation and control as was
necessitated by considerations of security or revenue. Indeed, India's case
was that the passage of goods was "subject at all times to control and on
occasion even to prohibitions" (para. 358 of Rejoinder). [p 102]
In respect of the first three categories, these controls did not preclude
the Court from finding that a custom had arisen creating a right of passage
as at July 1954, which right was itself subject to the regulation and
control by India. This finding, as I read the Court's decision, depended on
the fact that in respect of private persons and civil officials there was no
restriction beyond routine control, whilst in respect of goods in general,
despite certain prohibitions referred to in the Court's Judgment, in all
other cases the passage of goods was free, "no authorization or licence was
required".
It is in the absence or presence of any need to obtain prior permission or
licence for passage in respect of any category that the Court finds a
decisive distinction between the first three categories and the other three.
When, therefore, the Court turns to consider whether any right of passage
has been established in respect of armed forces, armed police and arms and
ammunition, its decision in respect of them is based upon a preliminary
finding that in this respect the position as regards these three categories
is clearly different.
It is then for consideration in what material respects, if any, it was
different, and whether any difference established is decisive.
Firstly, the difference is stated to lie in the fact that from 1818 to 1878,
the passage of armed forces and armed police between British and Portuguese
possessions was regulated on a basis of general reciprocity.
It is not apparent in what way this difference can be decisive. Reciprocal
arrangements between the British and the Portuguese were not confined to the
passage of armed forces and armed police between their respective
possessions; there were, during certain periods, some reciprocal
arrangements which also covered the passage of certain goods, between
specifically Daman and the enclaves, free from customs or transit duties
(see e.g. Indian Annex C. No. 35; Counter-Memorial, Vol. II, Indian Annexes
at pp. 134, 145, 149, 158, 163, 170, 177; Rejoinder, Vol. II, Indian Annexes
at P. 293).
It needs to be constantly stressed that we are concerned not with the matter
of general entry by British or Portuguese armed forces or armed police into
the possessions of the other, but with the special case of passage between
Daman and the enclaves. To the extent to which the general covers the
specific, the regulation of entry and transit on the basis of reciprocity is
quite consistent with the right claimed by Portugal, consistent with freedom
of passage between Daman and the enclaves, and in no way inconsistent with a
long continued practice giving rise through custom to a right of passage
between Daman and the enclaves. Passage [p 103] could be regulated and
controlled wholly or in part through agreed-to arrangements just as it could
through unilateral acts by the British and India. The factual difference
stated provides in my view no foundation for a conclusion that throughout
this period the Portuguese knew that the British were entitled at any time
at their absolute and arbitrary discretion to stop all passage of armed
forces and armed police between Daman and the enclaves.
Moreover, the question with which we are concerned cannot be dealt with as
if the existence of the enclaves had no special significance ; passage
between Daman and the enclaves cannot be equated to any entry into or over
British or Indian territory.
Secondly, the Court finds that after 1878 the position was that passage
could only take place with the previous authorization of the British, and
later of India, whether under a reciprocal arrangement already agreed to or
in individual cases, whereas, in the case of private persons, civil
officials and goods in general, no previous authorization was required.
On the basis of these preliminary findings, the conclusion is reached that
"having regard to the special circumstances of the case" the necessity for
authorization before passage could take place constitutes a negation of
passage as of right in respect of armed forces and armed police. This in the
Court's view predicates that the territorial sovereign had the absolute and
arbitrary power to refuse or withdraw permission at any time.
It is not evident what these special circumstances are.
India submitted that the essence of a right of passage is the power to pass
without permission; that the need for prior permission or licence negates
any right.
It does not appear to what extent, if at all, this proposition, which, in my
opinion is, as stated, unsound, has been accepted. If it be that in this
case the necessity for authorization before passage took place constitutes a
negation of passage as of right solely because of certain special
circumstances, it is important to know what those special circumstances are.
I assume the Court is referring to the preliminary findings of fact just
mentioned, which in my view do not support its decision. No other special
circumstances have been suggested, and I am not aware of any.
With regard to arms and ammunition, the Court's decision appears to turn
wholly on the finding that since 1878 the importation or exportation of the
same has been subject to prior permission or licence. This seems to
disregard as unimportant the practice which had been followed from 1818 to
1878. [p 104]
***
In my opinion the record establishes that, prior to the Treaty of 1878, it
was not the practice to seek prior permission of the British before any
passage of armed forces or armed police or arms and ammunition took place,
nor was it necessary to do so.
As regards the armed forces, the Treaty of Commerce and Extradition of 1878,
which terminated in 1892, contained a clause (Article XVIII thereof) which
provided that "The armed forces of one of the two High Contracting Parties
shall not enter the Indian dominions of the other, except for the purposes
specified in former Treaties, or for the rendering of mutual assistance as
provided for in the present Treaty, or except in consequence of a formal
request made by the party desiring such entry to the other." This Article
was of general application directed to entry into the dominions of the
other. It was proposed not by the British but by the Portuguese, who had for
just on IOO years prior thereto continuously exercised passage in respect of
armed forces between Daman and the enclaves. The reasons for Portugal's
request for the inclusion of this clause had nothing to do with any question
of passage between Daman and the enclaves, but were concerned with matters
of high policy. The overriding reason was its desire to protect and preserve
its sovereignty over its overseas possessions in India. It explained "the
exact meaning of this Article" (see Indian Annex F. No. 54, Rejoinder, Vol.
II, at page 227).
After the Treaty had come into force, and before 1890, although there were
apparently times when prior permission was in fact applied for, there were a
number of occasions when members of the Portuguese armed forces passed
between Daman and the enclaves without seeking or having any prior
permission to do so. The Portuguese claim that these occasions numbered
twenty-three. Whatever the precise number, it is quite clear on the record
that there were several (Indian Annex F. No. 53, Rejoinder, Vol. II, at
pages 212, 213, 214, 216, 218, 219 and 220).
This gave rise in 1890 and 1891 to correspondence which passed between the
British and the Portuguese authorities in which the former took up the
position that, by virtue of Article XVIII of the Treaty, formal request for
permission should in all cases be made whenever any Portuguese armed forces
passed through British territory. Whether the provisions of Article XVIII
justified the construction then placed upon it by the British authorities is
a question which need not be answered. The fact is that thereafter it became
a habit for the Portuguese to apply for prior permission. This marked a
point of departure in respect of the administrative practice which had
prevailed before 1878. [p 105]
In reaching its conclusion as to the practice with regard to the passage of
armed forces, the Court appears to have been much persuaded by letter of the
22nd December 1890 from the Governor General of Portuguese India to the
Governor of Bombay (Indian Annex F. No. 53, Rejoinder, Vol. II, at page 215)
and the Treaty of 1741 between the Marathas and the Portuguese. On
examination, however, these I think provide slender support for its
conclusion.
On 8 December 1890 the Bombay Government communicated with the Portuguese
Government in India to the effect that "armed men in the service of the
Portuguese Government are in the habit of passing without formal request"
between Daman and Nagar-Aveli and that this appeared in breach of Article
XVIII of the Treaty of 1878. It was to this legal contention that the
Governor General of Portuguese India replied on 22 December, in which inter
alia he stated: "On so delicate a subject I request leave to observe that
Portuguese troops never cross British territory without previous permission
and that small detachments whenever on the march meet a military post or any
force or British Authority, they halt and only proceed further after
applying for and obtaining fresh permission. For centuries has this practice
been followed, whereby the treaties have been respected and due deference
shown to the British authorities." The Bombay Government replied by letter
of 9 April 1891 in which it stated that application for permission, claimed
to be necessary under the terms of Article XVIII of the Treaty, had not been
observed in several instances. It was, however, made quite clear that
permission, when applied for in respect to Portuguese armed men, "would be
accorded in consonance with past practice". (Rejoinder, Vol. II, Indian
Annexes at page 223.)
Whatever the precise meaning to be given to the statement in the letter of
the Portuguese Governor General it is, I think, apparent on the reading of
the relevant correspondence that:
(a) The request for permission was treated very much as a formality, though
a not unimportant one. The "formal request" under Article XVIII of the
Treaty had first to be made.
(b) When permission was applied for, it would be forthcoming "in consonance
with past practice".
That this letter of the Portuguese Governor General cannot be accepted as
establishing that the practice which had existed prior to 1878 in relation
to passage of armed forces between Daman and the enclaves was to seek for
and obtain permission or that prior permission was necessary is, I think,
reasonably clear elsewhere in the record.
India contended that since 1879, when the Treaty came into force, permission
was necessary (para. 355 of Rejoinder). But "The [p 106] fact is ... that
before 1879 the entry of troops or armed police of either Government into
the territory of the other was governed by a reciprocal arrangement. The
existence of such an arrangement naturally made it unnecessary for a formal
request to be made and permission to be granted on each occasion of entry
(para. 333 of the Rejoinder). (See also paras. 296 and 333 of Rejoinder, and
paras. 132 and 136 of Counter-Memorial; Indian Annex F. No. 53, Rejoinder,
Vol. II, at pages 216, 218, 219 and 220; Indian Annex C. No. 39,
Counter-Memorial, Vol. II, pages 192-193).
As for the Treaty of 1741, referring as it does to circumstances and a time
forty years prior to the Portuguese obtaining possession of the enclaves, it
seems sufficiently remote from the issues with which we are called upon to
deal as to provide little assistance. It seems therefore clear that prior to
1878 it was not usual for the Portuguese to request prior permission nor
does it appear that such permission was necessary before passage took place.
When the Treaty of 1878 was entered into the crystallization into custom of
the practice existing between 1818-1878 was already far advanced, if indeed
it had not by that time become a local custom, as I incline to think was the
case.
Whenever, however, subsequently permission was in fact applied for, passage
was allowed not generally, but always. It was "accorded in consonance with
past practice".
In the case of armed police different arrangements were agreed to from time
to time or different administrative practices were followed, which endured
for certain periods. During some periods no prior permission was applied for
or appears to have been required. During other periods it was required, or
required when the number intended to exercise the passage exceeded a given
figure. On other occasions previous intimation of intention was all that
seemed to be called for (see e.g. Indian Annex C. No. 53, Counter-Memorial,
Vol. II, at p. 307 (1912); Indian Annex C. No. 57, ibid., p. 323 (1940)). It
was necessary to have "some sort of control or check over the movements of
armed police forces" (ibid., at p. 324). Prior permission never appears
however to have been necessary before 1878 nor was there any practice to
apply for the same.
With respect to arms and ammunition, subsequent to 1878 it was the usual
practice that permission had first to be applied for. But the evidence does
not establish that this was so during the period 1818-1878, or that it was
usual during that period for the Portuguese to ask permission.
***
But assuming that it were otherwise and that there was at all times an
administrative or agreed-to requirement, either general in application or
specifically applicable to passage between Daman and the enclaves, that
prior permission should be sought before armed forces, armed police or arms
and ammunition entered or passed over British,-and later Indian, territory,
that, in my opinion, would not preclude a custom arising creating in
Portugal a right of passage, subject of course at all times to its
regulation and control by the sovereign of the intervening territory.
Portugal has throughout made it clear that the right claimed by her to have
arisen from local custom is subject in its exercise to India's regulation
and control. Despite such regulation and control as from time to time
applied to all categories, it was the constant and uniform practice,
extending over more than a century and a quarter, for both the British and
India, to allow passage for each of these categories. Never, until about the
time of the events of 1954, did this practice alter.
***
Regulation and control take different forms, which may Vary from time to
time. As times and circumstances change, so may regulation and control. The
requirement of a licence to do an act is a common, useful and practical form
of administrative regulation and control. (See in this case, for example,
Counter-Memorial, Vol. II, Indian Annex D. No. 4, Act of 5 December 1857
relating to foreigners, which provided that no foreigner should travel or
pass through British territory without a licence which could be revoked at
any time; Annex D. No. 5, Act of 12 February 1864 making similar provision
to prevent (inter alia) subjects of foreign States from passing through
British India without the consent of the Government of British India.) A
necessity to apply for a licence before an act is done is not necessarily
incompatible with a right to do that act. The legal systems of many
countries will provide examples where before an admitted right may be
exercised application for permission must first be made, but where the right
to accord or refuse permission is, in all the circumstances, interpreted not
as one of absolute discretion but as a controllable discretion, one which
must be used reasonably and not capriciously, one which must be exercised in
good faith.
In the present case, in respect of the three categories where the Court has
held a right of passage in Portugal to have arisen, there were at different
times routine controls or such regulations and controls as were necessitated
by considerations of security or revenue. It is not without significance
that whereas the passage of certain goods was at different times and over
substantial periods totally prohibited, the passage of armed forces, armed
police, and arms and [p 108] ammunition were, until just before July 1954,
always allowed. The constant and uniform practice was to allow passage in
respect of all six categories sufficient to enable Portuguese authority to
function, subject however to the different controls in force from time to
time.
In respect of any of the first three categories, the Judgment of the Court
confirms that the right of passage which arose out of local custom may
properly, in respect to matters connected with the exercise thereof, be
controlled or regulated by India. Custom, which created the right, attached
to it the qualification of regulation and control by the sovereign of the
intervening territory.
This also, in my opinion, was the case in relation to armed forces, armed
police, and arms and ammunition where a stricter degree of control and
regulation may for obvious reasons be necessary. The checking of the
movement of any of these categories over the intervening territory, the
numbers, or quantity involved and the purpose for which the passage is
sought, the time, the route to be taken, and other modalities of passage,
are all matters properly the subject of control and regulation (cf. Indian
Annex C. No. 57, Counter-Memorial, Vol. II, at p. 324).
***
Whether it was in respect of goods or persons or civil officials, or armed
forces or armed police, or arms and ammunition, it was the constant and
uniform practice to allow their passage. In respect of each category
controls of different kinds operated on different occasions or during
different periods. But the controls differed only in degree. The
administrative need to apply for prior authority in respect of any one or
more category is not decisive in this dispute any more than was the general
prohibition of passage of goods during the Second World War or prohibitions
on transit imposed on different kinds of goods. Each in my opinion fell
within the field of regulation and control of the exercise of the right of
passage. In principle, I do not see any decisive difference between any of
the regulations and controls which applied to the various categories at
different times.
***
The Court in its Judgment places little emphasis, if any, upon the fact of
recognition by the British and India of Portuguese sover-[p 107]eignty over
the enclaves, yet this recognition is not only an indisputable, it is as
well the central, fact in the case. Another vital and indisputable fact is
that this sovereignty could not be exercised unless some passage was
accorded the Portuguese. Another is that this was recognized by both the
British and India.
In the course of the oral hearing, Counsel for India conceded "that
Portugal's sovereignty cannot operate if she is forbidden all passage of
official organs and at the present time of police forces". In determining
whether custom has created a right of passage, and, if so, its nature and
extent, the facts above referred to have a special importance. The
maintenance of internal order is an essential aspect of the exercise of
sovereignty. Its maintenance in these enclaves was not possible if all
access were denied to the Portuguese organs of government except unarmed
civilian officials.
The history of the enclaves, their geographical situation, the recognition
of Portugal's sovereignty thereover, the obvious necessity for some right of
passage sufficient to enable Portuguese sovereignty to be exercised,
presents as well the background against which the conduct of the Parties and
the practice they followed must be measured. Sovereignty is not a mere
status, it connotes an ability to exercise the rights of sovereignty.
Recognition that sovereignty over the enclaves was vested in Portugal was a
recognition of Portugal's rights to exercise sovereignty within them;
otherwise the recognition of sovereignty would have been meaningless.
For Portugal to exercise its rights of sovereignty, passage not only for
private persons, unarmed Portuguese civil officials and goods in general,
but also for armed forces, armed police and arms and ammunition was in fact
indispensable. Necessity for passage being implicit in the very existence of
the enclaves, the recognition of Portuguese sovereignty, taken in
conjunction with the constant and uniform practice which was followed,
establishes in my opinion that a right of passage in respect of all the six
categories referred to had been acquired by Portugal long before the events
of 1954.
The long, uninterrupted, and continuous passage permitted by the British and
India in respect of armed forces, armed police, and arms and ammunition is,
in all the circumstances, far more consistent with a conclusion that both
the British and India recognized an obligation on their part, subject to
their regulation and control, to allow their passage, than with a conclusion
that the matter of passage was solely one for their absolute and arbitrary
discretion and that they were at liberty, if they so wished, at any time to
put an end forever to further passage, isolate, for all practical purposes,
[p 110] the enclaves from Portuguese authority and thus effectively prevent
the Portuguese from exercising their acknowledged sovereignty over the
enclaves.
In my opinion the record establishes a practice during the British and
post-British periods, accepted as law by the Parties, to allow the passage
of armed forces, armed police, and arms and ammunition, as well as that of
private persons, civil officials and goods in general, to the extent
necessary in the exercise of Portuguese sovereignty over the enclaves, and
subject to the regulation and control of India, for the purposes of, but
only for the purposes of, the normal day-to-day administration thereof,
including the maintenance of law and order.
***
A right of passage having been established, there was a correlative
obligation on India not to prevent the exercise of that passage; it could
regulate and control it; it could not prevent it or render it nugatory or
illusive.
The Court has held that no breach by India of its international obligation
has been proved. Again, I regret that I am unable to agree, even assuming—as
for the purpose of this part of my opinion I do—that the right of passage
acquired by Portugal was limited to the first three categories mentioned in
the Court's Judgment.
In 1954 India did not acknowledge that Portugal had any right of passage.
India had persuaded itself that it was in its absolute discretion, if it
wished, completely to prevent Portugal from having any access to the
enclaves.
***
In order to ascertain whether any breach was committed by India it is, I
think, proper to have regard to the background furnished by certain events
which occurred over a period of upwards of four years prior to July 1954.
These disclose a widening estrangement between Portugal and India and a
progressive tightening of restrictions on all movement by the Portuguese
into and across Indian territory including ultimately and specifically
movement between Daman and the enclaves.
***
On 27 February 1950 the Government of India approached the Portuguese
Ministry of Foreign Affairs with the view that Portugal should agree to the
integration of her territories in the Indian Peninsula within the Republic
of India. It sought the acceptance [p 111] of this principle by Portugal,
leaving to be discussed the ways and means to give it effect.
By Memorandum dated 15 June 1950, Portugal made it clear that the transfer
of any Portuguese territory could not be considered.
On receipt of this Memorandum the Indian Minister in Portugal stated that
his Government could not accept the Portuguese refusal of India's proposal
as a final disposition of the question or acquiesce in the continuance of
the existing position.
On 14 January 1953, the Indian Government addressed a further Note on the
same subject to the Government of Portugal. It asked that the principle of
direct transfer should be accepted first and that this should be followed by
a de facto transfer of the administration. "No longer ... is it compatible
with the status of India ... that pockets of foreign territory, however
small in area ... should continue to exist on Indian soil..." "The
Government of India has come to the conclusion that no solution is now
possible except on the basis of a direct transfer which would ensure the
merger of these territories at an early date with the Indian Union."
On I May 1953, Portugal having refrained from replying to this renewed
request and having refused to discuss the question of a direct transfer with
the Indian Chargé d'Affaires, India, by Note of this date, notified Portugal
that unless it was prepared to discuss the question of direct transfer, it
proposed to close its Legation in Lisbon. The Note stressed again the
Government of India's view that Portuguese possessions should become an
integral part of the territory of the Union of India.
Portugal, on 15 May 1953, replied to both the preceding Notes. It adhered to
its refusal to discuss India's request, and asked India to reconsider its
intention to close its Legation.
On 26 May 1953 India notified Portugal that its Legation would be closed
from 11 June 1953.
In October 1953 India prohibited the transit of armed Portuguese police or
military personnel across Indian territory.
On 2 December 1953 the Portuguese Legation at New Delhi, by Note to India's
Foreign Affairs Ministry, stated that information had been received that
Indian authorities had as from 26 November 1953 forbidden the transit of the
Governor of Daman District, of the European officials and the car of the
Portuguese police through Indian territory between Daman and Nagar-Aveli
unless provided with passports and Indian visas. The Portuguese Note stated
that it would "hamper administration of the said territories"; it was felt
that the measure was unfriendly. [p 112]
This complaint was referred to in an Indian Note of 23 December 1953. India
stated that it had been compelled to review its policy in view of the
"general unfriendly attitude" of the Portuguese and the <<misuse" of
concessions hitherto enjoyed by Portuguese officials. However, to facilitate
the administration of Nagar-Aveli the District Magistrates at Surat were "as
a very special case" authorized to grant transit visas to permanent
Portuguese European officials of Daman and Silvassa but no further
concession could be considered. This practice as applied to transit between
Daman and Nagar-Aveli was, I think, an innovation (see Annexes 35 and 39 to
Portuguese Memorial, and Indian Annexes E. 51 and 52). It was the subject of
further protests on the part of the Portuguese, on 18 January 1954 and II
February 1954 (Annexes 39 and 40 to Memorial). The Note of 18 January (para.
4) stated that "the Governors of Daman, as well as the other officials of
the district, including the Europeans, had always been allowed, by custom
and tradition, to cross Indian territory between Daman and Nagar-Aveli ...
without any formalities of visas or of presenting themselves to the Indian
authorities".
On 3 February 1954, with immediate effect, trans-shipment through India from
and to the Portuguese possessions in India of arms and ammunition of all
categories was prohibited. The prohibition extended also to Portuguese civil
and military personnel, excepting only the Governor-General of Goa and
diplomatic and career consular officials accredited to the Government of
India (Annex 45 to Memorial).
***
We now come to the events which occurred at Dadra and Kagar-Aveli.
It is, I think, important to consider those which took place at Nagar-Aveli
separately from those at Dadra. India has throughout this case dealt with
the two series of events as in substance one occurrence. There was of course
an interconnection between them but they were quite separate occurrences.
On the evening of 21 July 1954 a band of men entered Dadra from Indian
territory for the purpose of taking over the administration there. A mêlée
ensued. Two Portuguese officers were killed. Portuguese resistance was
overcome and its control displaced.
On 13 June 1954, the transit of vehicles between Daman and the enclaves had
been interrupted by the Indian authorities. On 17 July 1954, India "decided
to make certain changes in the [p 113] concessions hitherto granted to the
Portuguese administration at Daman and Nagar-Aveli" with immediate effect. A
number of new restrictions were imposed, the most important of which was
that "the transport of firearms, and ammunition and military stores by a
Portuguese officer, or intended for the Portuguese India Government, passing
through Indian territory, will be prohibited. On the day preceding 21 July
the Governor of Daman, proceeding to Dadra, was prevented from crossing the
border. The Indian explanation is that he had merely been asked to submit
certain clarifications regarding his return visa, that he had refused to
give them and said he would obtain separate visas for the outward and return
journeys. This he did, and he passed through to Dadra on 20 July. At the
same time, on 20 July 1954, a bus on the regular service between Daman and
Nagar-Aveli was forced to return when it was nearing Dadra.
It is stated by India that "in April 1954 the position in regard to travel
between Portuguese possessions and India was that Goans who were not in the
service of the Portuguese Government could enter Indian territory without
formalities and freely move within it; and that Indian nationals also could
enter the Portuguese possessions without requirement of passport and visa,
but were required to report to the police authorities within a certain time
of arrival and were subject to inspection of identity certificates.
Portuguese Europeans and Portuguese native subjects who were in the service
of the Portuguese Government were required to produce 'Guias' or passports
having a visa for entry in or transit through India. There was no ban on
such entry or transit right up to the date of the insurrection in Dadra. The
day before the insurrection in Dadra, that is, on 21 July 1954, the Governor
of Daman had been allowed to enter Indian territory and proceed to Dadra and
to complete the return journey on the strength of visas granted by the
Indian Government. After the insurrection in Dadra, the Indian Government
ceased to grant visas to Portuguese Europeans or to native subjects in the
service of the Portuguese Government wishing to go to Dadra and
Nagar-Aveli." (Indian Counter-Memonal, para. 211.)
On 26 July the Portuguese Government requested that delegates of the
Governor of Daman (if necessary limited to three) should be permitted to go
to Nagar-Aveli in order to enter into contact with the population, examine
the situation and take the necessary measures on the spot. The request
stated that if possible this delegation would also visit Dadra and examine
the situation there. It mentioned that the delegation could be routed
directly to Nagar-Aveli from Daman and need not necessarily pass through
Dadra. This request was refused (Annex 52 to Memorial). [p 114]
This was prior to any occurrences in Nagar-Aveli. It was not until 29 July
that the first event which led during August to the overthrow of Portuguese
authority in Nagar-Aveli occurred. Up to 29 July conditions within
Nagar-Aveli were normal.
From the time of the events in Dadra and thenceforward the passage of all
Portuguese civil officials or employees to either of the enclaves was
banned. All passage was refused. In my opinion the banning of all transit by
and the stopping of all further visas to Portuguese civil officials, whether
native or European, followed by the refusal to permit the passage of these
few delegates—the refusal of all passage to the enclaves—was in breach of
India's international obligation in relation to Portugal's right of passage,
unless it can be excused as within the qualification to Portugal's right
which permitted India to regulate and control its exercise.
***
India contends that to have granted passage could have resulted in increased
tensions and could have led to undesirable consequences.
It is relevant to observe that India did not purport in any way to regulate
and control any right of Portugal to passage. Her attitude is that no such
right existed.
If India had in fact purported to regulate and control Portugal's right of
passage, it would have been relevant to enquire whether the action taken by
India was in reality a regulation or control of the right of passage, or was
directed to another and different purpose. It would have been relevant to
enquire whether it was in fact directed to control and regulation as such,
or whether it was directed to the right of passage as such so as to render
it nugatory. India cannot be in any better position in this case than she
would have been had she purported to have regulated and controlled
Portugal's right of passage.
In my opinion, the key to the question whether its actions were or were not
a breach of its obligation to conduct itself in consonance with the
international right acquired by Portugal, is to be found in the conduct of
India and the series of progressive restrictions on passage imposed by it
since 1953. The refusal to grant visas to any civil officials after the
incursion into Dadra and the refusal to permit the passage to Nagar-Aveli of
but a few delegates of the Governor of Daman cannot be seen in isolation.
They were part of the pattern already formed by the past.
An examination of the evidence forces me to the conclusion that the dominant
purpose of India immediately after the events at Dadra, to which all other
considerations were subordinated, was to [p 115] exclude the Portuguese
thenceforth from any further access to the enclaves. For reasons unconnected
with any question of regulation or control of passage as such or of any
right of passage, it was not prepared to permit civil officials or any organ
of Government to pass to the enclaves under any circumstances and acted
accordingly. By India's actions Nagar-Aveli became isolated from the
Portuguese authorities at Daman before the events which occurred there had
taken place, and has, in the events which have happened, continued to be so
ever since.
The qualification of Portugal's right making it in its exercise subject to
India's control and regulation affords in the circumstances no protection to
India. Breach of its international obligation has been established. In my
opinion the Court should have so found and should then have proceeded to
consider the resulting situation, and the contentions advanced by India to
the effect that any obligations with regard to passage binding on it in July
1954 should be regarded as having lapsed or become unenforceable against it
as a result of events and circumstances which have since occurred
(Signed) Percy Spender.
[p 116]
DISSENTING OPINION OF JUDGE CHAGLA
In my opinion the fifth and sixth objections of India should prevail and the
Court should hold that it has no jurisdiction to entertain Portugal's
Application.
Fifth Objection
With regard to the fifth objection in my opinion it is now only of academic
importance, and I have nothing to add to what I have already stated in my
dissenting opinion on the Preliminary Objections.
Sixth Objection
I have very little to add to what I said in my dissenting opinion on the
Preliminary Objections. I can sum up the objection in one sentence. The real
dispute is with regard to the obligation of India, not with regard to her
violation of that obligation; and the source of that dispute is the
conflicting views taken by India and Portugal as to the true legal effect of
the events from 1779 onwards. Thus put, it is clear that the situations and
facts for the purpose of this objection took place prior to 1930.
Further the Court has no jurisdiction to adjudicate upon facts and
situations which arose prior to the relevant date. Three aspects of the
matter may be considered. Parties may not be at divergence with regard to
these facts and situations, in which case no adjudication is called for as
in the case of the Electricity case where there was no dispute as to the
Awards of the Tribunal. The second aspect is where the facts and situations
may be only part of res gestae and may not have any causal connection with
the dispute. In this case also adjudication in the strict sense is not
called for. But the third case is the case we have here. If there is a
causal connection between the facts and situations and the dispute or the
facts and situations are the source of the dispute, then the Court would be
adjudicating upon something which the State submitting to the jurisdiction
of the Court has expressly excluded from the Declaration accepting the
jurisdiction of the Court. This was the case in the Morocco Phosphates case
where the dahir of 1921 was outside the relevant period.
The object of this reservation ratione temporis is clearly to keep ancient
disputes outside the jurisdiction of the Court. In this case the Court is
being called upon to adjudicate upon the divergent view of the Parties with
regard to situations and facts which go back zoo years. Let us take a
practical view of the matter. India is fortunately in a position to produce
a vast volume of documentary [p 117] evidence to resist Portugal's claim and
to demonstrate its hollowness. But India would have been seriously
prejudiced if the evidence had not been preserved or had been destroyed.
When India made her Declaration in 1940 she definitely did not intend that
matters and situations which arose before 1930 and went back 200 years would
come before the International Court and she would be called upon to explain
and give an account with regard to them.
This is precisely the reason why the Court in the Phosphates in Morocco case
observed: "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".
Portugal has sought to draw a distinction between source of right and source
of dispute—and she says that facts and situations prior to 1930 deal with
the source of Portugal's right. There is a clear fallacy in this argument.
If there is a divergence or difference between the Parties as to the very
sources of the right claimed, then it is clear that this divergence or
difference constitutes the source of the dispute which is before the Court.
In the Electricity case the source of the right was the Awards of the Mixed
Tribunal. There was no difference or divergence between the parties with
regard to these Awards. It is precisely because of this that the Court held
that the date of the Awards was irrelevant for the purpose of considering
the ratione temporis limitation.
It is incorrect to suggest, as suggested by Portugal, that for the purpose
of the ratione temporis limitation the only factor that is legitimate to
consider is the unlawful acts of India about which Portugal complains. These
alleged unlawful acts are only the incidents which brought the matter to a
head and forced Portugal to come to this Court. They can have no bearing on
the controversy between the Parties. And if the controversy goes back
further than 1930, then the jurisdiction of the Court is clearly excluded.
Portugal urges that the dispute is about the right of passage and its
violation. That is strictly not correct. The substantial dispute is about
the right of passage. The question of violation is only ancillary to the
question of right. If there is no right, there can be no violation.
Violation merely constitutes the accrual of the cause of action which
entitled Portugal to come to Court.
Counsel for Portugal gave the instance of a debt and the failure to pay the
debt. In my opinion, if the debt was contracted before the relevant date and
the Court has to pronounce upon its validity, then clearly the Court would
have no jurisdiction by reason of ratione temporis. If the debt was not
disputed, then the position would be different. [p 118]
It is contended by Portugal that such a wide construction of the ratione
temporis reservation would deprive the Court of jurisdiction in most cases,
because under international law most legal titles arise before 1930, the
date selected by most countries accepting the compulsory jurisdiction of the
Court. The fallacy underlying this contention is that in most cases, legal
titles are not disputed, as— to refer once more to the Electricity case—the
Awards of the Mixed Tribunal were not disputed.
It is unnecessary for me to point out the innumerable instances prior to
1930 where Portuguese access to the enclaves gave rise to divergence of
opinion and even to actual disputes. Let me only quote from a letter of the
Governor of Goa dated 12 September 1859 (p. 175, Indian Annex to
Counter-Memorial): "The ever-mooting disputes which have for so long
troubled the British and Portuguese Governments."
On the merits, in my opinion, India has substantially won. Although I take
the view that Portugal has no right of passage whatever, inasmuch as the
Court has found in favour of Portugal a very limited right confined to
private persons, goods and civil officials, and inasmuch as India herself
has stated that she has no objection to the passage of private persons and
goods, and the right regarding civil officials is of little consequence and
is also subject to the regulatory power of the Government of India, I think
that the Judgment of the Court in the main vindicates the attitude taken up
by India in the controversy between herself and Portugal over the question
of the right of passage.
I should like briefly to state the reasons why I have come to the conclusion
that Portugal has failed to establish that she has any right of passage as
claimed by her.
The claim put forward by Portugal in this case is an extraordinary and
unprecedented one. She claims a right of transit from Daman to her enclaves
in Dadra and Nagar-Aveli through Indian territory. She concedes that her
right is without immunities—direct or indirect. She admits the complete and
absolute sovereignty of India over the territory over which she claims a
right of transit. Her case is that the right she claims does not lead to the
dismemberment of India's sovereignty but only the acceptance by India of
certain obligations towards Portugal in the exercise of her sovereignty.
Portugal has refused to define the extent or the content of this right. The
purpose of this right, according to her, is to make it possible to exercise
her sovereignty in the enclaves and for that purpose to maintain a liaison
between Daman and the enclaves. She is unable to tell the Court what the
conditions or modalities of this right should be—this, according to her, is
for India to lay down, so long as these do not conflict with her fundamental
right to maintain a [p 119] liaison between Daman and the enclaves. The
right she claims is like a geometrical line between two points without any
breadth.
It will be noticed that the subtle distinction drawn by Portugal between
dismemberment of sovereignty and limitation in the exercise of sovereignty
is difficult to substantiate. To the extent that India is sovereign she must
have complete, absolute and unrestricted right to regulate the passage of
goods, men and traffic—and regulation must include complete prohibition. To
the extent that Portugal claims that India cannot prohibit her passage to
the enclaves it must inevitably mean the dismemberment of her sovereignty—it
must involve a restraint and limitation of her sovereignty.
It is also difficult to understand how any right of transit can be without
any immunities whatever. This concession makes the right even more
unsubstantial than it already is. Portugal says that she has no right to
object to the manner in which India can regulate this right. She can impose
customs duties. She can prohibit the entry of certain types of goods, she
can insist on prior authorization before arms or armed men can enter or
leave the enclaves. These are all immunities which are under the sole
competence of India— but she cannot completely cut off Portugal's
communications with her enclaves. When one analyses the situation, in the
ultimate analysis, Portugal is in fact claiming a right of transit with
immunities. She is claiming certain immunities which India cannot change or
abolish. India can prohibit this or that, she can regulate this or that, but
she cannot prohibit or regulate something else. What else can this be except
a claim of a right of transit with immunities, however limited or restricted
they may be? It is merely a futile exercise in dialectics to Say that
Portugal does not wish to interfere with India's right to regulate the right
of transit so long as India does not make the exercise of that right
impossible.
There is one further difficulty about the right which Portugal claims. In
order that the Court should award her that right, the Court must be in a
position clearly to define it—so that it would be capable of being enforced
on the one hand and of being complied with on the other. But the right
claimed by Portugal is a vague, shadowy, unsubstantial and indefinite
right—whose content and modalities would change from time to time and whose
enforceability would depend upon circumstances as they change from day to
day. India would determine to what extent the right should be allowed and
even in certain eventualities to suspend it altogether. It would then be for
Portugal to complain of an unlawful act on the part of India and bring the
matter before the Court. So we have a grim [p 120] prospect of unending
litigations in this Court. May I be permitted to quote a passage from Judge
Lauterpacht's latest book, which very succinctly and very appropriately
describes what I have just been saying:
"It is in accordance with the true function of the Court that the dispute
submitted to it should be determined by its own decision and not by the
contingent operation of an attitude of accommodation on the part of the
disputants."
One thing is clear—if Portugal gets from this Court what she is asking, the
dispute between India and Portugal will not be determined by its own
decision. The Court will only be sowing seeds for future disputes and
discords.
The Court has consistently emphasized the necessity of finally settling a
dispute (see the case of Certain German Interests in Polish Upper Silesia
and also the Corfu Channel case).
The right claimed by Portugal lacks precision for another reason. You have
to reconcile it between the needs of Portugal to exercise sovereignty and
the regulating power of India to control and regulate it.
Needs of Portugal is an entirely subjective concept and it is impossible for
the Court to declare a right which can be exercised, not according to any
criterion laid down by the Court, but according to the subjective
determination of Portugal, which determination may Vary from time to time
and according to varying circumstances.
On the question of local custom it is undoubtedly true that throughout the
material period there was in fact transit between Daman and the
enclaves—there was a constant and almost continuous traffic of goods and
men. If the establishment of a local custom depends merely on a piling up of
a large number of instances, then undoubtedly local custom can be said to be
established in this case. But local custom under international law requires
much more than that. It is not enough to have its external manifestation
proved; it is equally important that its mental or psychological element
must be established. It is this all-important element that distinguishes
mere practice or usage from custom. In doing something or in forbearing from
doing something, the parties must feel that they are doing or forbearing out
of a sense of obligation. They must look upon it as something which has the
same force as law. If I might put it that way, there must be an overriding
feeling of compulsion—not physical but legal. That is what the jurisprudence
on the subject calls the conviction of necessity. I do not wish to go into
the subtleties of this jurisprudence. But the language of the Statute of the
Court is clear and binding upon the Court. Article 38 (1) (b) lays down one
of the sources of international law which the Court shall apply in deciding
disputes before it. It says: international custom, as evidence of a general
practice accepted as law. [p 121]
Now, from 1818 right down to 1954, there is not a single instance on record
where Portugal has claimed the transit or passage as a right, or where
Britain or India has admitted an obligation on their part to grant it. When
one goes through the details—set out in such wealth in the pleadings—it is a
case of permission or authorization granted by the Indian authorities, of
permission or authorization modified or even permission or authorization
revoked and even transit of certain types of goods and certain kinds of
personnel completely prohibited.
The record contains several instances of complete prohibition of certain
kinds of goods, and also of goods being made subject to the payment of
customs duty. See, for instance, the prohibition of salt from Daman, the
prohibition in British India of country liquor and other articles connected
with its manufacture from any Portuguese territory, and the complete
prohibition of all imports by land into Daman during the war years of
1939-1945.
The Barcelona Conference is important for the fact that, under Article 14 of
the Convention, it was implicit that separate and special provisions with
regard to enclaves, including the enclaves we are considering in this case,
were to be made by the countries concerned. There was no suggestion at this
Conference, by Portugal, that she had any right of transit. The question was
to be regulated, not on the basis of any right but on the basis of an
agreement to be arrived at between Portugal and India.
It may be that Portugal realized the necessity of maintaining a liaison with
her enclaves. But Portugal's necessity does not constitute the conviction of
necessity required for a local custom to which effect can be given. There
must be an equally clear realization on the other side of an obligation to
respect this necessity. And we seek in vain to find any such realization in
the whole of the record, from 1818 till 1954, when both the enclaves were
lost to Portugal. Concessions were made from time to time, both by the
British and Indian Governments, but they were on the basis of either
reciprocity or good-neighbourliness; but never on the basis of accepting a
past practice as having the force of law. The record clearly shows that it
was British interests, not a sense of obligation to the Portuguese, that
guided Indian officials. They were prepared to help the Portuguese but only
if it was convenient to do so. When they did so they were granting a
request, not respecting a right.
At best and at the highest, Portugal has only established a series of
revocable acts of courtesy and accommodation on the part of the British
authorities.
The basis of the passage, as stated by Portugal herself, was the rule of
good neighbourhood and international co-operation—moral [p 122] principles
which lack a legal content (see the Portuguese Note to Government of India
of 11/2/54—Annex 40 to the Portuguese Memorial).
In my opinion, therefore, Portugal has failed to establish any local custom
even with regard to a limited right of passage. In the result, she is not
entitled to any relief and her Application should be dismissed.
(Signed) M. C. Chagla.
[p 123]
DISSENTING OPINION OF JUDGE FERNANDES [Translation]
The Court in part gives satisfaction to the claim of Portugal. It recognizes
that when India decided to oppose the communications between the Portuguese
territories of Daman, Dadra and Nagar-Aveli, Portugal had a right of passage
over Indian territory to ensure these communications to the extent necessary
for the exercise of Portuguese sovereignty over the enclaves of Dadra and
Nagar-Aveli. But the Court takes the view that this right relates only to
the transit of private persons, civil officials and goods in general and not
to that of armed forces, armed police and arms and ammunition. I cannot
agree with that differentiation, which appears to me to be artificial and
unfounded, in fact and in law. I am consequently in disagreement also with
the conclusion reached in the Judgment, that India has not acted contrary to
its obligations resulting from Portugal's right.
I
I. I have first a few observations to make.
Underlying the present case is the essential fact that Portugal is sovereign
of the two enclaves of Dadra and Nagar-Aveli situated inside Indian
territory. The Judgment rests upon that essential fact and it finds (a) that
the exclusive authority of Portugal over these enclaves was never questioned
and (b) that Portuguese sovereignty over them was recognized by the
successive rulers of the surrounding territory, that is to Say, the British
from 1818 until 1947 and India after it gained its independence.
It is evident that Portuguese sovereignty over the enclaves could not have
existed all that time and could not continue to exist today if there were no
right of transit in favour of Portugal and no corresponding obligation
incumbent on India; the purpose of that right and obligation is to ensure
the essential communications with the enclaves to the extent necessary for
exercise of the sovereignty upon which they depend.
Such then is the situation of fact and of law which governs the whole case:
unquestioned Portuguese sovereignty over the enclaves and the impossibility
of exercising it without a right of transit.
The Court arrives at the conclusion that Portugal is indeed the possessor of
a right of transit for communication with the enclaves, but with one
restriction: that right includes the passage of private persons, civil
officials and goods in general to the extent necessary for the exercise of
Portuguese sovereignty over these territories, [p 124]but does not include
the passage of armed forces, armed police and arms and ammunition.
Sovereignty over any territory implies the capacity to exercise public
authority in that territory. It implies the right and the obligation to
maintain order there, if necessary manu militari. Lastly it implies the
discharge of police duties. In the particular case of the Portuguese
enclaves, how would that authority, that right and obligation and those
duties be exercised if a right of access to the enclaves were not recognized
for armed forces, armed police and arms and ammunition?
2. Portugal is claiming a total right of passage in respect of what is
necessary for the exercise of its sovereignty over the enclaves. Portuguese
Counsel more than once emphasized this aspect of the Portuguese claim. They
said, for example, at the hearing on 25 September 1959: "that right must be
viewed in the round, in relation to its purpose, which was to ensure liaison
with the enclaves to the extent necessary for the effective exercise of
Portuguese sovereignty" (Oral Proceedings (Merits), Vol. 1, p. 110).
It is true that the Parties dealt separately in the case with the transit of
persons and goods and also with that of armed forces, police and arms. But
that was only a method of exposition in order to examine case by case the
practice which is said to have led to the creation of a local custom and its
only purpose was to show that the regulation of the exercise of the right
varied according to the different categories to which the right applied.
In its final Submissions Portugal presents its claim to a right of passage
as a whole and India disputes it in the same fashion.
For these reasons I am not in agreement with the method that has been
followed of making a separate analysis of the Portuguese claim according to
the various categories dealt with in the Judgment: private persons, civil
officials, goods in general, armed forces, armed police and arms and
ammunition.
These categories relate to the ways in which the right of transit can be
exercised, and may affect its regulation; Portugal admits that these ways of
exercise and this regulation are matters within the exclusive jurisdiction
of India.
With particular regard to armed forces, armed police and arms and ammunition
Portugal has made it plain that the only right it claimed was to send into
the enclaves the elements of the public forces necessary for the maintenance
of order, that is, for the discharge of police duties. "There is no doubt
whatsoever", it was said at the hearing of I October 1959, "that the right
of passage claimed by Portugal is limited to certain elements of the public
forces responsible for maintaining order." That duty may sometimes [p 125]
be entrusted to forces not part of what is usually called police, including
military elements, but that does not alter the essential fact that they are
performing a police duty. From the point of view of international law, what
matters is the function and not the administrative organization of the
public force, which is a matter within the exclusive competence of the
State. This consideration is important to a proper understanding of the
nature and content of the right claimed by Portugal.
The public force consists of course of personnel and of material. It is an
armed force. A right of passage for armed forces—with no arms—is
inconceivable.
3. My third and last preliminary observation is that Portugal, as I see it,
did not apply to the Court for recognition of a right it claimed to possess
in the past. In its final Submissions of 6 October 1959 it asks the Court to
adjudge and declare "that the right of passage ... is a right possessed by
Portugal and which must be respected by India". "Is a right" and "must be
respected", that is to Say at the present time, on the day on which the
Submissions were filed.
Portugal did not institute proceedings merely in order to obtain moral
satisfaction. It did so in order to secure recognition of an existing right,
a right which it believes that it still possesses even though it admits that
in certain circumstances its exercise might be held to be suspended.
4. The facts regarding the passage of elements of the public forces between
Daman and the enclaves, facts which were illustrated by an abundance of
documents filed with the Court, are indicated in the following paragraphs.
5. Examination of the evidence permits of one general statement which is
certain beyond doubt: these elements of the public forces passed between the
three pieces of territory forming the Portuguese district of Daman
practically daily, with no obstruction at all, from the time when the
enclaves were acquired by Portugal in 1783 and 1785 until July 1954. It was
not until this last date that, for the first time in history, this transit
was prevented by the Government of India. Until then these organs of the
Portuguese public force had in no single case been refused passage, whether
they were individuals or whether they were in more or less large parties.
That is highly significant.
6. In the Maratha period (1785-1818) passage of the public forces was
effected as a right.
A question discussed at great length by the Parties during the proceedings
dealt with the legal character of the concession granted by the Marathas to
the Portuguese under a treaty of 1779.
Portugal argues that this treaty conferred upon it sovereignty over the
territories making up the enclaves of Dadra and Nagar-[p 126]Aveli. India
contests this argument and maintains that the concession granted by the
treaty was a feudal tenure known as a saranjam or jagir granting to Portugal
only the right to collect certain fiscal revenues in the enclaves.
The Court accepts the Indian thesis.
I do not agree: but I do not propose to prolong this opinion by a discussion
of this question, since it seems to me unnecessary in order to establish the
existence, today as in the past, of the right of passage claimed by Portugal
for its public forces.
It is sufficient for my purpose to record the Court's finding that Portugal
has been for a long time the undisputed sovereign of the enclaves. That is
what is important in order to determine whether Portugal possesses the right
it claims. How Portuguese sovereignty was acquired is of minor importance in
this demonstration. It exists and that is all that matters.
7. Nevertheless, the fact that I refrain from discussing the legal character
of the concession accorded to the Portuguese by the Treaty of 1779 does not
prevent me from repeating the statement already made, namely that the
passage of armed forces was exercised as a right throughout the Maratha
period from the very day on which the Portuguese took possession of the
enclaves.
Even granted that the Portuguese obtained from the Maratha a simple
saranjam, all the documents and authorities cited in the case by the
Government of India show that that tenure carried with it very wide powers.
There is good reason for ascribing to it a feudal character. It conferred on
the saranjamdar (the holder of the saranjam) not only the right to collect
taxes, but also the right and the duty to administer the territory in the
widest sense. The Peshwa's sovereignty was hardly more than nominal.
Moreover, it has been shown that in those days and in those territories
sovereignty amounted to very little. Its essential attribute was the
collection of taxes.
8. An agreement of 1785, intended to settle certain questions arising out of
the transfer of the villages to the Portuguese, acknowledged in their favour
full powers over these villages. Sovereign powers, as I call them;
saranjamdar powers, according to those who do not share my opinion on the
scope of the 1779 Treaty. The point is of small importance. What
matters—this no one can deny in view of the express terms of the 1785
Agreement and the later sanads—is that the Portuguese were given full
administration and jurisdiction over the territories transferred with
authority to collect taxes, administer justice, pursue criminals, maintain
order, suppress rebellions, etc.
It follows as a necessity that, by granting these powers to the Portuguese,
the Marathas implicity recognized in their favour the [p 127] right of
passage indispensable for the exercise of those powers. Nor could that right
be limited to the passage of private persons, officials and goods. To
maintain order, suppress revolt, etc., the right of passage had necessarily
to include the public forces with all that they needed in order to carry out
their duty. That is only logical and needs no further proof. The records
supply evidence that the right of passage for the public forces was normally
exercised in the Maratha period even to defend the enclaves from military
attacks by the Marathas themselves (Memorial, Annexes 9-13; Reply, Annexes
42 and 43).
9. The question then arises, what became of this right of transit (assuming
that it was only a saranjam) after the Portuguese secured full sovereignty
over the enclaves? Did it thereby disappear? It would be absurd to suppose
so. The reinforcement of the title under which the Portuguese exercised
their exclusive authority over the enclaves (admitted in the Judgment), the
conversion of an accessory and incomplete title—a saranjam—into a complete
and principal title—sovereignty—could not possibly expunge the right which
already existed under the lesser title. On the contrary, this evolution or
alteration of title would have been reflected by a similar reinforcement of
the right of passage. This would have acquired a greater content and greater
mandatory force in its transformation from a right for the purpose of
exercising the powers of a saranjamdar into a right for the purpose of
exercising sovereignty. That is all that needs to be said about the facts
and their legal implication during the Maratha period.
10. As regards the British and post-British periods, apart from the fact I
mentioned above—that the passage of the public forces was always effected
without a single case of obstruction—the following facts must be recalled:
(a) Before the coming into force of the Anglo-Portuguese Treaty of 1878, the
passage of armed forces and police required no authorization. This is
admitted by the Government of India in paragraph 333 of the Rejoinder, which
says:
"... The fact ... is that before 1879 the entry of troops or armed police of
either Government into the territory of the other was governed by a
reciprocal arrangement. The existence of such an arrangement made it
unnecessary for a formal request to be made and permission to be granted on
each occasion of entry."
I need only point out that any existing agreement of this kind must have
been a tacit one (giving rise to custom), since there is no trace of any
express agreement.
(b) Article XVIII of the Anglo-Portuguese Treaty of 1878 stipulated that the
armed forces of one of the Parties would not enter into the territories of
the other in India without a formal request to do so. Police might enter
without that request only in pursuit of criminals or smugglers.[p 128]
These provisions did not in my opinion apply to the particular passage
between Daman and the enclaves. The records contain a large number of
documents (Reply, Annexes 50-76) showing that this passage continued to take
place, at any rate until 1890, with no need for an authorization.
It was only in December 1890 (twelve years after the date of the treaty)
that the British authorities considered that permission was necessary for
the transit of armed troops and of Portuguese police between Daman and the
enclaves. They adopted this attitude by way of reprisal against the
Portuguese action in disarming a British detachment which had entered the
Portuguese territory of Goa without permission in accordance with the
treaty.
In the correspondence which passed with regard to this incident, the
Governor-General of Portuguese India stated that "Portuguese troops never
cross British territory without previous permission". But the fact that the
same Governor-General adds three lines lower down that: "For centuries has
this practice been followed", whereas the enclaves had been contiguous to
British territory for only 72 years, obliges us to suppose that the
Governor-General was not referring to transit between Daman and the
enclaves, but to the general case of entry by the Portuguese into British
territory from their earlier possessions in the Indian Peninsula.
In any event, it is significant that the British police, with reference to
the Portuguese Governor's letter, declared in 1891 that they had ' "no
orders to prevent armed men of the Portuguese Government ... from passing
through British territory on duty" without obtaining permission. And they
added: "The Superintendent of Police is of opinion that the present
arrangements should be allowed to continue." The Northern District
Commissioner expressed his agreement with the police that "the present
arrangement is convenient and might be allowed to continue" (Rejoinder,
Annexes, p. 223) This shows that there were special arrangements for the
passage of armed police between Daman and the enclaves and that these
arrangements allowed passage without permission in derogation from the rule
in Article XVIII of the Treaty of 1878.
(c) In the period which followed the denunciation of the Treaty in 1892, the
practice varied considerably. An agreement of 1913 established that the
police of each Party might cross the other's territory on previous
notification (no authorization). From the correspondence which led to that
agreement, and which is reproduced on pages 305-309 of the Annexes to the
Counter-Memorial, it is to be inferred that the agreement confirmed the
earlier practice in the sense that previous notification was all that was
required.
An agreement of 1920 made passage by armed police below a certain rank
subject to prior permission (Indian Annex C. No. 56). This is the first time
that this requirement was stated in an agree-[p 129] ment between the
Parties since the denunciation of the Treaty of 1878.
Another agreement of 1940 waived permission for police forces up to ten men
and required it for larger numbers. This is the only agreement specifically
concluded for transit between Daman and the enclaves. (Indian Annex C. No.
57.)
II. Accordingly, if the practice followed for 170 years is viewed as a
whole, it is found that the passage of troops and armed police without
previous permission was the rule and that the need for permission was the
exception. That, however, does not alter the fact that permission was needed
at certain times. But that does not in my opinion authorize the conclusion
that the right of transit did not exist. I desire to justify my statement.
For the moment I will only observe that, whenever authorization was needed,
it was invariably granted, without exception, and that the British never had
any intention of refusing it. A letter sent by the Governor-General of
British India to the Governor of Portuguese India on 9 April 1891 concerning
the need for an authorization, said that it was not "suggested that
permission, when applied for in respect to Portuguese armed men, would not
be accorded in consonance with past practice". (Rejoinder, Vol. II, p. 223.)
12. An examination of the facts also reveals that the granting of permission
whenever it was requested was based on the idea that the grant of permission
was obligatory by virtue of a right of Portugal. The variation in the
practice which has just been examined can prove only that the necessity, at
certain periods, for an authorization was a purely regulatory requirement.
Portugal is claiming a right which is subject to regulation and control by
India. We find that regulation very liberal over a very long period and
later on more strict; being sometimes content with a simple pass issued by
the Government of the forces in transit (Indian Annex C. No. 39); at other
times requiring notification of passage, in some cases made beforehand, in
others afterwards ; and at yet other times demanding a formal request for
permission. It cannot be argued that the very existence of the right was
subject to these vicissitudes.
13. Much was said during the proceedings about the essential distinction
between the right and its regulation. That is elementary and needs no
stressing here. Nor is it necessary to emphasize the equally elementary
distinction between the possession of a right and the ability to exercise
it. What does need recalling, having regard to the doctrine underlying the
Judgment, is the fact that, if there are authorizations which genuinely
constitute rights, there are more which do not. It cannot be asserted that
the necessity of an authori-[p 130]zation is a negation of a right of more
ancient date. Such an affirmation would be flatly contradicted by all
jurisprudence.
14. The general notion of authorization is linked with the distinction that
I have just mentioned between the right and its regulation and between the
right and its exercise. The notion is common to all branches of law, but
finds its widest field of application in public law, especially
administrative law.
15. "The authorization is the administrative act by which the authority
removes in each case the limitations imposed by rules of law upon the
exercise, by a given subject, of a right or power already belonging to the
subject himself to exercise a certain activity or perform a legal act, such
exercise or performance being assessed in the light of the public interest
which it is the duty of the authority to safeguard." (Ortolani in Scritti
guiridici in onore di Santi Romano, vol. II, p. 251.)
Accordingly, the authorization does not create the right. The necessity for
it cannot be made equivalent to non-existence of the right. On the contrary,
it normally presumes the existence of an earlier right.
"The right exists before issue of the permissive act", De Francesco says
(L'ammissione nella classificazione degli atti amministrativi, p. 83). And
he adds: "The administrative act simply consents to the exercise of what
already exists" (ibid., p. 88). From this he infers: "The act of the
authority functions as a condition of the exercise of the right" (ibid., p.
83).
There we have a definition of authorization in one word: it is a
conditioning act. It is not an act establishing a nom, nor is it a contract.
It does not create rights, it only conditions their exercise.
16. Looked at in another aspect, authorization is an act of control, of that
control over the exercise of its right of passage which Portugal admits that
India possesses.
"The control exercised by means of the authorization—says Donati—is designed
only to recognize and declare that a certain behaviour on the part of a
subject of law is in accordance with certain determining factors, rules,
principles and objectives of the interest towards the satisfaction of which
the act sought by the subject tends." (Quoted by Ortolani, op. cit., p.
253.)
17. Practice confirms doctrinal opinion. A very large number of examples
could be given where authorization is necessary for the exercise of ,a
pre-existing right, where it functions as a mere conditioning act or as a
means of controlling observance of the regulations and expediency.
A few examples will suffice. [p 131]
The ownership of land necessarily implies the right to build upon it. What
legal systems do not require a permit for such building, at least in urban
areas? It would be harder still to find any which do not also require a
permit to occupy for the first time a building just erected. As D'Alessio
says, "The person who obtains a building permit is not granted any right he
did not previously possess" (Ortolani, op. cit., p. 225).
The owner is sole lord of his domain. But if his neighbour needs to enter
that domain to gather fruit from a tree situated on its border, the owner
cannot refuse him the necessary authorization. So, too, if the neighbour
needs to erect scaffolding in the boundary area between the two properties
in order to put up some building or undertake repairs on his own estate.
These are rights which the neighbour possesses before obtaining an
authorization. The law recognizes his rights, but it also makes their
exercise dependent upon consent by another. That consent can be made subject
to reasonable conditions, but it cannot be refused out of hand. If it is,
the courts will decide (Portuguese Civil Code, Articles 2314 and 2318).
18. There is however no need to go beyond international law or even beyond
treaty law in connection with international transit in order to find
instances which confirm what is here asserted, namely that the necessity for
an authorization cannot be assimilated to absence of a right.
19. The study by Professor Edouard Bauer submitted- to the Court by Portugal
in order to show that there has not been a single case in history, since the
Treaty of Westphalia, where a right of passage was not recognized in favour
of an enclave (including the passage of armed forces), that study, I say,
shows that treaties have adopted three systems for regulating the exercise
of that right.
Sometimes a prior authorization was necessary, sometimes a mere notification
of passage was enough, sometimes again very strict and detailed regulations
were agreed upon, which made the request for permission unnecessary.
Examples of the first case are the Treaty of Munster of 24 October 1648 and
the Peace of the Pyrenees concluded on 7 September 1659. In both these cases
a right of passage was recognized for the passage of Louis XIV's troops to
the French enclaves of Lorraine and Alsace, subject to a request for
permission being addressed to the rulers of the intervening territories.
"... pateatque illac regio militi quoties postulatum fuerit tutus ac liber
transitus". Such was the formula in the Treaty of Munster. It shows that,
even where the right of transit is granted by treaty, the request for
previous authorization may be laid down as a condition of the exercise of
the right.
20. Authorization, I repeat once more, is a method of control. It follows
that it can be dispensed with when the Parties agree to [p 132] establish
another equally effective means of control. A case in point is the
German-Polish Convention on Freedom of Transit signed in Paris on 21 April
1921. This Convention regulated military transit across Poland between East
Prussia and the rest of Germany so strictly and in such detail that any
authorization became unnecessary. Provision was made for one military train
once a week to carry personnel and for another train to carry arms and
ammunition. The whole matter was strictly regulated in the numerous clauses
of the Convention governing this form of transit. Nevertheless it was
provided that "the German authorities shall notify the Polish authorities of
the departure of this train at least twenty-four hours before it starts".
21. Let us now consider two more recent instances.
The Chicago Convention of 7 December 1944, to which nearly all nations have
acceded, lays down in its Article 5:
"Each contracting -state agrees that all aircraft of the other contracting
States, being aircraft not engaged in scheduled international air services,
shall have the right ... to make flights into or in transit non-stop across
its territory ... without the necessity of obtaining prior permission ...
subject to the right of the State flown over to require landing. Each
contracting State nevertheless reserves the right, for reasons of safety of
flight, to require aircraft desiring to proceed over regions which are
inaccessible or without adequate air navigation facilities to follow
prescribed routes or to obtain special permission for such flights."
It can therefore be seen that the right of air transit is recognized, but
subject to regulation and control. This regulation and this control in every
case include the right of the State flown over to require landing and, in
special cases, an application for prior permission. This requirement of
permission does not mean that foreign aircraft have not the right to fly
over "regions without adequate air navigation facilities", it means only
that authorization may be required for the exercise of that right.
22. Another instance is furnished by the Charter itself. Article 43 provides
that: ''AU Members of the United Nations ... undertake to make available to
the Security Council, on its call and in accordance with a special agreement
or agreements, armed forces, assistance and facilities, including rights of
passage, necessary for the purpose of maintaining international peace and
security." The forces in the service of the United Nations have therefore a
right of passage over the territory of Member States. Can that right be
exercised without the permission of the State passed through? Certainly not.
A special agreement is needed to which that State is a party. But the latter
cannot lawfully refuse to subscribe to that agreement unless for a reason
which the Security Council deems valid. [p 133]
23. I think I have now proved my point that the need for an authorization in
order that police or other forces may pass through foreign territory is in
no way incompatible with the existence of a right of passage of older date
than this authorization. This clearly means that the right of the State
passed through to require an authorization before its territory is traversed
does not necessarily imply a discretionary power to grant the passage or
refuse it.
Its purpose being to establish that the conditions regulating exercise of a
right are satisfied and that in each case no injury is done to the lawful
interests of the party whose authorization is requested, the authorization
implies a power of appraisal, but not a discretionary power. If those
conditions are met and if those lawful interests are not sacrificed. the
authorization must be granted. The jurisdiction of the authorizing party
must be exercised with a view to the purposes for which it was conferred.
"There is a multitude of cases—says Hauriou—in which, for the exercise of
one or another of their rights, the governed are obliged by law to ask the
government for authorization...; the government is thereby obliged to
perform the act asked of it..." (Précis de droit administratif et de droit
public, 12 me édition, p. 357.)
In the present case, the requirement at certain times of authorization for
the passage of elements of the police and armed forces was dictated by
precisely those "considerations of security" referred to in the Judgment in
connection with certain restrictions imposed on the transit of goods. It is
difficult to see why restrictions based on such considerations should be
compatible with a right of transit in respect of goods and not in respect of
other categories of transit.
24. When we consider the very nature of the right of transit for armed
forces and its possible repercussions on defence and public order in the
territory passed through, we shall have no difficulty in understanding that
an authorization or equivalent form of control is necessary for its
exercise, even when the right is established by a treaty. It may even be
said that the authorization is inherent in this kind of right unless it is
excluded by agreement between the Parties.
In fact, the true subject-matter of the right of transit is the
authorization to pass, in whatever form, express or tacit, that
authorization may be.
The right of transit is not a real right, possessed by the subject directly
per se, in the territory to be passed through. It is a personal right, and
the passive subject in the legal relationship has a corresponding personal
obligation, which may be regarded either in its positive aspect of facere
(granting an authorization) or in its negative aspect of non facere (not
opposing passage). [p 134]
In this way the territorial sovereignty of the State passed through is
entirely consistent with the obligation to allow passage.
25. It has also been contended that the transit of elements of Portuguese
armed forces and police towards the enclaves was not exercised as of right,
on the ground that it was exercised on a basis of reciprocity, i.e. in
consideration for the recognized right of elements of British armed forces
and police to cross Portuguese territory when they had to move between two
points in their own territory separated by Portuguese territory.
I am unable to accept the view that there can be no right when there is
reciprocity. Most of the rights recognized between nations rest on a basis
of reciprocity; they do not thereby lose their real character of rights. Not
only is reciprocity not incompatible with such rights; it is the very
condition for their effectiveness. The right which Portugal is claiming for
itself is exactly the same as the right Portugal recognizes India to possess
for the purposes of communicating with its enclave of Meghwal situated
inside Portuguese territory.
II
26. Portugal invokes as the titles of its right the Treaty of 1779, local
custom, general custom and the general principles of law.
27. I have said enough about the 1779 Treaty in paragraphs 6 to g above.
I consider that in virtue of this Treaty and of its supplementary agreements
Portugal received full sovereignty over the enclaves and, with it, the
implicit and necessary right of access to them.
Even if I take up the position adopted by the majority of the Court, namely,
that there was no transfer of sovereignty but only the granting of a
saranjam, I still come to the conclusion that a right of transit was by
implication conferred upon the Portuguese for the exercise of the powers of
administration, police, etc., which were granted to them. And I cannot see
that the conversion of the saranjam into sovereignty, in the British period,
caused the right of access to the enclaves to disappear.
28. With regard to local custom I have perhaps already said too much.
I do not see why that custom should be the source of a right of transit for
private persons, civil officials and goods in general, and not be so for
armed forces, armed police and arms and ammunition. If the reason for this
is that the latter passage depended at times upon an authorization, I
believe that I have shown that this reason has no support in either the
theory or the practice of the law. There is an even stronger reason why the
right of passage should be [p 135] recognized for armed forces, armed
police, arms and ammunition than for private persons and goods in general.
The right for these two last categories is recognized in virtue of
Portuguese sovereignty over the enclaves. That sovereignty is the cause and
also the purpose of the right. Without it the right would not exist. But the
right for armed forces, armed police and for arms and ammunition is much
more closely linked, because much more necessary, to the existence of
sovereignty than is the right for private persons and goods. And this is
why, although the last-mentioned categories were sometimes the subject of
prohibitions in respect of specific commodities (salt, liquor and products
for distillation) and were even altogether banned in the last war, passage
of armed forces was never forbidden. Is it not illogical that the right
should be considered not to exist for categories most closely associated
with sovereignty and which have never been prohibited, while its existence
in the case of the other categories occasions no doubt?
29. A point upon which I do not agree with the majority of the Court is that
an examination of the practice established between the Parties in the course
of history, namely, local custom, is sufficient to settle the case. That
would be so if, on the basis of that examination only, the Court had
considered the Portuguese claim as a whole to be founded. In that case it
would certainly not be necessary to waste time seeking confirmation of that
conclusion in the general titles invoked by the Applicant.
But this is not the case. The decision arrived at involves a vital
amputation of the right claimed by Portugal. And if, as Portugal argues,
none of the titles exclude the others, but, on the contrary, all confirm and
reinforce each other, the examination must extend to the general rules
invoked by the Applicant if justice is to be done.
It is true that in principle special rules prevail over general rules, but
to take it as established that in the present case the particular rule is
different from the general rule is to beg the question. Moreover, there are
exceptions to this principle. Several rules cogentes prevail over any
special rules. And the general principles to which I shall refer later
constitute true rules of ius cogens, over which no special practice can
prevail.
30. A weighty reason why examination of the general titles should not be
rejected a priori is the very important part they played in the arguments of
the two Parties.
Counsel for Portugal emphasized the outstanding importance they attached to
them when Professor Bcurquin said at the hearing of 30 September 1959: [p
136]
"I may be allowed to begin by recalling to the Court the important place in
Our argument reserved for general international law.
It constitutes the very basis of that argument.
As M. Telles rightly said, the particular titles we invoke rest in the last
resort upon general rules. They are an application, a concrete illustration,
of those rules. I may add that, even if they did not exist, Portugal's right
of passage would be no less indisputable."
31. Portugal invokes general custom and the general principles of law as the
general titles of its claim.
32. A study of the situation found to exist throughout history, and which is
to be found existing today, in all known enclaves has shown that a uniform
and consistent practice has been established between States in favour of
recognizing that the sovereign of an enclave has the right of transit
necessary for the exercise of its sovereignty. That shows, beyond any
possible dispute, that there is a general rule of custom which would alone
suffice to establish the Portuguese claim.
33. As general principles of law, Portugal invoked two kinds of principle:
(a) the principle deriving from a comparison of the municipal laws of
civilized nations in the matter of right of access to enclaved property;
(b) certain fundamental principles inherent in the very fabric of
international law.
34. As regards the first of these principles, it was shown by a study of
comparative law by Professor Max Rheinstein, filed with the Court. that the
laws of all civilized nations recognize the right of access to enclaved
property in favour of its owner. No sort of analogy needs to be drawn
between ownership and sovereignty, nor is it necessary to transfer a rule of
municipal law to the field of international law. What has to be determined
is whether there is not a reason deeply rooted in the legal consciousness of
all peoples for admitting, as a logical and practical necessity, the
recognition of a right of passage to one who has a certain legal capacity to
exercise in an area to which he cannot have access without using an area
reserved for another. If that is not a general principle of law, valid alike
in municipal and international law, within the meaning of Article 38 of the
Statute of the Court, then no principles will meet the conditions of that
Article.
35. Lastly, there remain the general principles of law invoked by Portugal
as inherent in the international legal system. Whatever view may be held in
regard to these principles, whether they are
[p 137] considered to be emanations of natural law or to be rules of custom,
or constitutional principles of the international legal community, or
principles directly deduced from the concept of law, or principles agreed to
by States because they are members of a legal family, whatever, I say, may
be the attitude of each towards the origin and basis of these principles,
all are agreed in accepting their existence and their application as a
source of positive law.
36. The very first of these essential principles is mutual respect for
sovereignties. That principle has more than a negative content in the sense
that States must not intervene in matters within the territorial
jurisdiction of other States. It has also a positive content in the sense
that each state "consents to a certain restriction of action in the
interests of the liberty of action granted to every other State".
(Oppenheim-Lauterpacht, para. 113.)
37. In our own case two sovereignties stand face to face: that of Portugal
over the enclaves and that of India over the surrounding territory. The
existence of the former depends absolutely upon the maintenance of
communications between the enclaves and the rest of the territory of the
State of which they are an integral part. And since an essential obligation
of sovereignty is to maintain order in the territory in which it operates,
those communications must needs include the passage of the elements of the
public forces necessary for that purpose. To prevent those essential
communications would fail to respect the sovereignty depending upon them. It
would crush it out of existence. There is not much difference, it was said
at the hearings, between shooting a man dead and causing his death by
strangulation.
38. If the State in possession of the surrounding territory were permitted
to obstruct the communications necessary for the exercise of a sovereignty
over enclaves, it would mean that that State was free to suppress that
sovereignty at its own discretion. Such action would be technically
different from conquest by arms, but it would have exactly the same results.
If international law forbids the latter, it cannot permit the former.
The sovereignty of a State over any part of its territory cannot be made
subordinate to the will of another State. The very essence of sovereignty is
independence of an exterior will. The prime function of international law is
to safeguard the independence of States, their territorial integrity, and
mutual respect for sovereignties.
39. No doubt the obligation upon a State to agree to the passage over its
territory of the nationals of another State means that, to this limited
extent, its jurisdiction is no longer discretionary and is [p 138]
fettered by that international obligation. International law has no other
purpose than to create mutual rights and obligations between States and thus
to fetter their respective jurisdictions.
The obligation upon India flows from a legal necessity imposed by the
geography of the enclaves. Factual data have legal implications. For
instance, a geographical fact underlies the rule of custom which recognizes
the right of navigation over waterways connecting inland ports with the sea.
"It is the land which confers upon the coastal State a right to the waters
off its coasts", the Court said in the Fisheries case, thereby recognizing
the legal implications of geographical facts (Reports 1951, p. 133).
40. In the particular case before the Court there is another special reason
for upholding the existence of the right claimed by Portugal and the
reciprocal obligation binding upon India. It is that the enclaves were
constituted in Indian territory with the implied consent (if the Portuguese
argument based on the Treaty of 1779 be rejected) of the successive
sovereigns of that territory. The Court has accepted it as proved that
Portuguese sovereignty was recognized by the British in fact and by
implication and that it was subsequently tacitly recognized by India.
At this point I come to an argument of Portugal which appears to me to be
fairly decisive. It may be formulated as follows: recognition, by a State,
of the sovereignty of another State over an enclave situated within the
territory of the former necessarily implies, as a logical consequence,
recognition at the same time of the right of transit essential for the
exercise of that sovereignty, subject to regulation and control by the
sovereign of the territory surrounding the enclave.
Recognition of the sovereignty of a State over a certain territory is an act
involving a number of legal consequences. By that act that sovereignty is
accepted as forming part of the international legal order and the States
which have so acted undertake to respect all the attributes which that legal
order confers upon sovereignty, in particular that of organizing the public
forces and the maintenance of order in the territory in question. By
recognizing Portuguese sovereignty over the enclaves, the British, and later
the Indians, could not but impliedly have accepted all the logical and
necessary consequences of that recognition, amongst which a right of transit
for the forces responsible for police duties is one of the most necessary.
41. There is a legal rule that he who sanctions an act sanctions also the
foreseen and necessary consequences which logically flow therefrom.
The doctrine of implied powers contained in a general power, by virtue of
the purpose of the latter, was approved by the Court [p 139] in the case
concerning Reparation for Injuries Suffered in the Service of the United
Nations (I.C.J. Reports 1949, p. 182). "Under international law", the Court
said, "the Organization must be deemed to have those powers which, though
not expressly provided in the Charter, are conferred upon it by necessary
implication as being essential to the performance of its duties." That is
what Portugal asks: recognition of a right which, if not expressly laid down
in a written rule, is conferred upon it by necessary implication by the fact
of recognition of its sovereignty over the enclaves, as being essential to
the exercise of that sovereignty. "The intent to observe a legal rule", says
Anzilotti, "implies the intent also to observe the rules without which the
original rule would have no meaning and which are logically included in it."
(Corso di Dir. Int., 1, p. 64.)
42. The principle of the interpretation of legal rules and acts in
accordance with their purpose is also well settled. The purpose of
recognition of the sovereignty of a State over a given territory is that the
right of that State to exercise governmental functions over that territory
should be recognized. It could not be contended that, in the case of an
enclave, that exercise would be possible without a right of access thereto,
especially for the purpose of ensuring the maintenance of public order
there.
43. If the State occupying the surrounding territory recognized the
sovereignty of another State over an enclave while at the same time mentally
reserving the right to sever the communications with it when it chose, it
would not be acting in accordance with the principle of good faith, which is
the most general and the most essential of the general principles of law.
44. This then is what follows from the general principles of law: the
transit necessary in order to exercise all governmental functions in an
enclave, including the organization of public forces and the maintenance of
order, is a right of the State which is sovereign of the enclave; to this
right there corresponds the obligation of the State occupying the
surrounding territory not to oppose that transit. This conclusion is
particularly inescapable in the case of a State which has recognized the
sovereignty of the other over an enclave situated within its own territory.
45. The particular practice which was established between Portugal and the
successive sovereigns of the territory surrounding the enclaves cannot
exclude the application in the present case of the general principles of
law, still less can it be interpreted in a way which conflicts with those
principles.
"The general principles of law are at the basis of custom and of
conventional law. The latter are usually no more than the crystallization of
those principles. The concrete rules cannot be construed[p 140] to conflict
with the principles of which they constitute the application." (Verdross,
Derecho Internacional Publico, pp. 205-206.)
"The priority given by Article 38 of the Statute of the Court to conventions
and to custom in relation to the general principles of law in no way
excludes a simultaneous application of those principles and of the first two
sources of law. It frequently happens that a decision given on the basis of
a particular or general convention or of a custom requires recourse to the
general principles of law... A court will have recourse to those principles
to fill gaps in the conventional rules, or to interpret them." (De Visscher,
in Rev. de Dr. int. et de Lég. comparée, 1933, p. 413.) "International
practice shows that a court or an arbitrator cannot ascertain the true
meaning of the provisions of a treaty without considering these within the
framework of certain general principles which dominate them." (Ibid.. D.
40s.)
The authorities whom I have just cited strengthen me in my opinion that it
was really necessary to have recourse to the general principles, at least
for the purpose of properly interpreting the practice established between
the Parties.
46. All I have said with regard to the general rules of international law,
and, in particular, with regard to the general principles of law tends to
show the existence of the right .claimed by Portugal in toto, as it was
formulated by Portugal and the content of which has no other definition than
that which the Applicant itself has given to it: a right of transit for that
which is necessary for the exercise of Portuguese sovereignty over the
enclaves. But I have mainly in mind the passage of armed forces, armed
police and arms and ammunition. I consider that there is nothing in the
rules and principles invoked to warrant the conclusion that there should be
one right for civil transit and another for military transit. If there were
any reason for a distinction it would be in favour of the latter as being
more closely bound up with the exercise of sovereignty.
I therefore come to the conclusion that the right claimed by Portugal is
well established, both on the basis of the relevant special rules and on
that of the relevant general rules.
III
47. It becomes clear that if I reach the conclusion that Portugal has a
right of passage over Indian territory to the extent necessary for the
exercise of its sovereignty over the enclaves, which cannot fail to
include—I repeat it once more—the passage of the armed forces necessary to
ensure the maintenance of law and order in those territories; if I arrive at
that conclusion, I must also conclude that India has violated Portugal's
right by its action in preventing, without any legally valid reason, the
exercise of that right by Portugal.[p 141]
The fact has been abundantly proved in the proceedings, as have the purely
political reasons for the attitude of India.
After the failure of the requests which it' made through diplomatic
channels, between 1950 and 1953, to obtain the direct transfer to its
sovereignty of the Portuguese territories in the Indian Peninsula, the
Government of India sought to obtain the same results by less direct but
more unlawful methods.
48. To consider only the facts relating to the severing of communications
with the enclaves, attention may be directed merely to the following:
(a) From October 1953, the transit of police and military personnel was
prohibited (Indian press communiqué of 22 July 1954, Memorial, Annex 44).
(b) The transit of arms and ammunition of all categories was prohibited on
17 July 1954, that is, four days before the attack on Dadra (Memorial, Annex
47).
(c) On 13 June 1954, the transit of vehicles between Daman and the enclaves
was prohibited with the consequential repercussions on the transit of goods
(Reply, Annex 168).
(d) On 20 July 1954, a bus on the regular service between Daman and
Nagar-Aveli was forced to turn back on nearing Dadra (Reply, Annex 165).
(e) On 21 July 1954, all communications, even for private persons, were
prohibited (Reply, Annex 166).
(f) The attack on Dadra by elements coming from Indian territory (as is
admitted by India in paragraphs 227 and 228 of its Counter-Memonal) was
carried out in the night of 21/22 July.
(g) As from that date, India ceased to grant visas for the transit of
Portuguese Europeans or native subjects in the service of the Portuguese
Government, even for the purpose of going to Nagar-Aveli, where the
situation was still calm. This is confirmed by India in paragraph 211 of its
Counter-Memorial.
(h) In a Note of 24 July, the Portuguese Government asked the Indian
Government for authorization for the despatch of forces to re-establish
order in Dadra. This request was rejected in a Note of 28 July, on purely
political grounds: "The Government of India have made it clear", it is said
in the Note, "that they cannot accept the continuance of foreign rule over
any part of India" (Memorial, Annex 52, para. 12).
(i) On 26 July, the Portuguese Government asked for facilities to send to
Nagar-Aveli three unarmed delegates of the Governor of Daman. This request
was rejected in the same Indian Note of [p 142]
28 July on the grounds that a state of tension had been created among the
Indian population bordering on the enclaves and that that tension would be
increased by the passage of Portuguese officials.
(j) All this happened, it must be stressed, before anything abnormal had
occurred at Nagar-Aveli. It is essential to point this out in order to show
that any argument by India to justify its attitude, based on the existence
of an abnormal situation on Portuguese territory, is not valid in respect of
transit between Daman and Nagar-Aveli.
(k) Reinforced police were placed by the Indian authorities around the
enclaves before the latter were attacked. This fact is confirmed by the
Indian Government in its press communiqué of 22 July. It seeks to justify it
by the increased number of troops on Portuguese territory. But it
contradicts itself, since in the same communiqué it indicates that in Daman,
a town of 20,000 inhabitants, there was a military force of over 100 men
(sic) (Memorial, Annex 44).
(l) At the end of July 1954 Nagar-Aveli too was attacked by elements coming
from Indian territory, as India has acknowledged in paragraphs 227 and 228
of the Counter-Memorial, already referred to.
(m) Portuguese proposals for the sending to the enclaves of observers of
third Powers were rejected.
Those are the facts. They reveal a manifest violation of Portugal's right of
transit.
49. Even from the limited point of view of the right recognized by the Court
in respect of the transit of private persons, civil officials and goods, the
facts indicated in paragraphs (c), (d), (e), (g), (i) and (l) prove that
even the right relating to those categories was violated.
50. By way of justification of certain of these facts, in particular the
denial of passage to the delegates of the Governor of Daman seeking to go to
Nagar-Aveli, some reliance may have been sought to be placed upon the state
of tension existing in Indian territory at the time when the facts occurred.
This cannot provide an acceptable justification for India, since that state
of tension was the result of its own fault and, in particular, of the
negligence of its authorities in the face of the preparation on its own
territory of acts of aggression directed against Portuguese territory.
In saying this it is not my intention to differ from the view expressed by
the Court that it is not called upon to deal with the facts in question
since Portugal has not formulated any claim with regard to the
responsibility of India by reason of its lack of diligence in preventing
aggressive acts against Portugal prepared upon its territory. [p 143]
But where the question arises of passing upon the validity of an excuse put
forward by India for opposing the exercise of Portugal's right of transit;
where it is necessary to determine whether that opposition, in the
circumstances of the present case, falls within India's power of regulation
and control, or whether, on the contrary, it constitutes an abuse or a
misuse of that power, it does become necessary to determine the
responsibility of India for the creation of the situations and facts upon
which it purports to base its excuse. For, clearly, if it appears that it
has such a responsibility, the excuse can no longer be valid. Nemo alleget
turpitudinem suam. No one can rely upon the consequence of his own fault to
escape the performance of a legal obligation.
51. So far as I am concerned, the careful study I have made of the record
and of the evidence which it contains has led me to the conclusion, of which
I am fully convinced, that India is responsible for the events which
occurred at Dadra and at Nagar-Aveli in July-August 1954, and that that
responsibility makes it impossible for it to justify its violations of the
right recognized as belonging to Portugal.
All the evidence leads to the conclusion that the measures taken by the
Indian authorities in respect of Portuguese transit between Daman and the
enclaves were designed to facilitate the action of the armed bands which
invaded the enclaves and to ensure their impunity. The police forces which
were stationed around the enclaves did not allow anyone from Daman to enter
but did not in any way oppose the entry of the invaders.
52. With particular regard to the refusal of passage to delegates of the
Governor of Daman attention must be drawn to a flagrant contradiction. In
its note of 28 July 1954 the Government of India gave as its reason for the
refusal the state of tension which was allegedly created among the Indian
population in consequence of what were called the repressive actions of the
Portuguese authorities long before the attack on Dadra was under
contemplation. But this tension—if it existed—did not prevent visas being
granted to the Governor of Daman for a journey to and back from Dadra on the
very day before the attack. If, in the circumstances alleged by India,
passage by anyone was likely to excite the hostility of the Indian
population, it would surely have been the passage of the Governor. Nothing
of the kind occurred. Why should it be supposed that the passage of his
delegates, who were unarmed, would have had different repercussions ?
53. From all that I have said I conclude that:
(a) Portugal has proved that it is the holder of a right of transit through
the territory of India for all that is necessary for the full exercise of
its sovereignty over the enclaves of Dadra and Nagar-Aveli. [p 144]
(b) This right cannot fail to include the passage of elements of the public
forces and the arms necessary for the maintenance of internal order, that
is, for the exercise of police functions in those territories.
(c) India has acted contrary to the legal obligations binding upon it by
virtue of Portugal's right of passage.
(Signed) Fernandes. |
|
