Commentary on the Case of Portugal vs India, 1960

Portugal v. India., [1960] ICJ

Portugal, Appellant

v.

Government of India, Respondent

Indexed as: Portugal v. India (The Right to passage in Indian Territory)

Neutral Citation: 1960 ICJ

Brief facts about the Case: -

Portugal's possession of India included two excursions, Dardora and Nagar Averi, which passed under the local government in mid-1954. Portugal claims that it has a right of passage to these excursions and the right to pass between one and the other, to the extent necessary to exercise sovereignty and subject to Indian regulation and control. Did.

She further argued that, contrary to her previous practice, India prevented her from exercising this right in July 1954, and the situation had to be improved. The first ruling on 26 November 1957 was related to the jurisdiction of the court in which India challenged.

The court dismissed four of India's preliminary oppositions and added the other two to the motion. In a second ruling on April 12, 1960, after dismissing the remaining two preliminary dissents, the court ruled Portugal's allegations that India considered unfounded.

Courts found that Portugal had a transit right claimed in 1954, but that right did not extend to the military, armed police, weapons and ammunition, and India did not violate the obligations imposed by Portugal's existence.

The issue raised: -

Disputes are submitted to the Court for consideration and judgment, in accordance with Article 33 of the Charter of United Nations, Article 40(1) of the Statute of the Court, and  Article 32(2) of its rules concerning the rights of the Portuguese public servants and citizens, as well as foreigners authorized by Portugal, pass India on the road between the Portuguese territory of Namao  (Damgo Coast) and  Portuguese landlocked territories in Dadri and Nagar-Aveli, and between the last two territories mentioned.  Portugal, which has indisputable rights, has declared and keeps asking for it, to do it.  For its part, India has opposed and continues to oppose the exercise of this right.

The title in question was a treaty made in 1779 Between Portugal and the sovereigns of Punem at the time of control over the territory of Dadra and Nagar-Aveli. From the contract in question, the contracting party. In addition to the agreement on the transfer of sovereignty in the relevant area, it was intended and actually created. A rite of passage between the Damio territories of Portugal (Litoral Damiio) and by the enclave and each of these another exclave.

Since then, this right has belonged to Portugal. This data is natural and essential to complement sovereignty over excursions. From the time of the contract to the latest Date, long term, almost 200 years, this was correct easy to exercise by officials and individuals Portuguese and foreigners with Portuguese consent authorities. This right was exercised peacefully and uninterrupted Until British rule over the surrounding area begins Exclaves during and years of British government A few years after India's Declaration of Independence.

Judgement: -

The case concerning right of passage over Indian territory (Preliminary Objections) between Portugal and India was submitted by Application CIE the Portuguese Government requesting the Court to recognize and declare that Portugal was the holder or beneficiary of a right of passage between its territory of Damgo (littoral Damgo) and its enclaves of Dadra and Nagar Haveli and between each of the 1atter and that this right comprises the faculty of transit for persons and goods, including armed forces, without restrictions or difficulties and in the manner and to the extent required by the effective exercise of Portuguese sovereignty in the said territories.

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 and violating its international obligations and to adjudge that India should put an immediate end to this situation by allowing Portugal to exercise the right of passage thus claimed.

The Application expressly referred to Article 36, paragraph 2, of the Statute and to the Declarations by which Portugal and India have accepted the Court's compulsory jurisdiction.

The Government of India for its part raised six Preliminary Objections to the jurisdiction of the Court which was based on the following grounds: 

•  The First Preliminary Objection was to the effect that a condition in the Portuguese Declaration of December 19th, 1955, accepting the jurisdiction of the Court resewed for that Government "the right to exclude from the scope of the present Declaration at any time during its validity any given category or categories of disputes by notifying the Secretary General of the United Nations and with effect from the moment of such notification" and was incompatible with the object and purpose of the Optional Clause, with the result that the Declaration of Acceptance was invalid.  
• The Second Preliminary Objection was based on the allegation that the Portuguese Application of December 22nd, 1955, was filed before a copy of the Declaration of Portugal accepting the compulsory jurisdiction of the Court could be transmitted to other Parties to the Statute by the Secretary-General in compliance with Article 36, paragraph 4, of the Statute.
  • The filing of the Application had thus violated the equality, mutuality and reciprocity to which India was entitled under the Optional Clause and under the express condition of reciprocity contained in its Declaration of February 28th, 1940, accepting the compulsory jurisdiction of the Court.  
• The Third Preliminary Objection was based on the absence, prior to the filing of the Application, of diplomatic negotiations which would have made it possible to define the subject matter of the claim.
•  The Fourth Preliminary Objection requested the Court to declare that since India had ignored the Portuguese Declaration before the Application was filed, India had been unable to avail itself on the basis of reciprocity of the condition in the Portuguese Declaration enabling it to exclude: from the jurisdiction of the Court the dispute which was the subject matter of the Application.  
• The fifth preliminary objection was based on a warning from India's Declaration of Acceptance. It excludes disputes relating to matters solely under the jurisdiction of the Government of India under international law from the jurisdiction of the court. The government submitted that the facts and legal considerations submitted to the court did not conclude that the subject matter of the dispute could be reasonably claimed to be outside the jurisdiction of the country.
• Finally, in the 6th Preliminary Opposition, the Government of India stated that India's Declaration of Acceptance was limited to "situational or factual disputes that occurred on or after February 5, 1930." Therefore, the court claimed that it lacked jurisdiction.
• The Government of India first argued that the proceedings filed by Portugal in court did not occur after February 5, 1930, and secondly, in any proceedings related to the situation and facts before that. Claimed to have been.

Interpretation/ Analysis: -

The Government of Portugal has added a statement to its submission asking the parties to remind themselves of generally accepted principles. This is their decision or a decision that may lead to worsening or extension of the proceedings. The court considered that in this situation, this request from the Portuguese government should not be responded to.

In the judgment, the court dismissed the first and second preliminary oppositions with 14 votes to 3 votes, the third with 16 votes to 1 vote, and the fourth with 15 votes to 2 votes. From 13 to 4 votes supported the 5th objection to the proposal, and from 15 to 2 votes supported the 6th objection to the proposal.

Finally, we declared that the main procedure would be resumed and set a deadline for further procedures as follows: On February 25, 1958, about the submission of an Indian anti-monument. On May 25th, you submitted your answer in Portuguese. 1958; On July 25, 1958, he submitted a reunion of India.

Conclusion: -

The court found that the facts on which India's submission was based were not recognized by Portugal and that an investigation of British practice was needed to elucidate those facts and their legal consequences.

Determine if Indian and Portuguese authorities on the issue of transit rights, especially this practice, indicate that the parties have considered this right to be an issue solely within the scope of territorial sovereignty under international law.

For. All of these and similar questions could not be unexpectedly considered at this preliminary stage. Therefore, the court has decided to participate in the fifth objection to the proposal.

References: -

1. Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter) Advisory Opinion, 1948, I.C. J. Reports 1947-1948: I 27-25.
2. Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion. I.C. J. Reports 1949: 1 28; 111 303; IV 388. 556, 559, 860-867.
3. International Status of Southwest Africa, Advisory Opinion, I.C.,]: Reports 1950: 126; IV 222, 384, 520.
4. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. reports 1950: 1 117,587; IV 110-III, 115, 211, 241, 859.
5. Asylum, Judgment, I.C.J. Reports 1970.
6. Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I.C. J. Reports 1950.
7. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C. J. Reports 1951.
8. The United Kingdom v. the United States (1910)
9. United States v. Netherlands (Island of Palmas Case)
10. Legal Status of the South-Eastern Territory of Greenland, Orders of 2 and 3 August 1932, P.C.I.J
11. https://www.icj-cij.org/en/case/32

By: - Aayush Aman

Lloyd Law College

B.A.L.LB (2020-2025)