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    Portugal V India

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    Benedict Estrella
    The Portuguese government claimed it had a right of passage over Indian territory to access its enclaves within India. This included transport of armed forces and goods without restriction. India denied this right and prevented passage. The ICJ found that Portugal had a right of passage for private persons, officials and regular goods, but this right did not extend to armed forces, police or weapons. It also found that India had not violated its obligations by regulating passage.

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    Portugal V India

    Uploaded by

    Benedict Estrella
    665 views1 page
    The Portuguese government claimed it had a right of passage over Indian territory to access its enclaves within India. This included transport of armed forces and goods without restriction. India denied this right and prevented passage. The ICJ found that Portugal had a right of passage for private persons, officials and regular goods, but this right did not extend to armed forces, police or weapons. It also found that India had not violated its obligations by regulating passage.

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    Portugal v India

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    The Portuguese government claimed it had a right of passage over Indian territory to access its enclaves within India. This included transport of armed forces and goods without restriction. India denied this right and prevented passage. The ICJ found that Portugal had a right of passage for private persons, officials and regular goods, but this right did not extend to armed forces, police or weapons. It also found that India had not violated its obligations by regulating passage.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    665 views1 page

    Portugal V India

    Uploaded by

    Benedict Estrella
    The Portuguese government claimed it had a right of passage over Indian territory to access its enclaves within India. This included transport of armed forces and goods without restriction. India denied this right and prevented passage. The ICJ found that Portugal had a right of passage for private persons, officials and regular goods, but this right did not extend to armed forces, police or weapons. It also found that India had not violated its obligations by regulating passage.

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    © All Rights Reserved
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    of 1

    ICJ l RIGHT OF PASSAGE OVER INDIAN TERRITORY l PORTUGAL V INDIA

    Overview:
    The Portuguese possessions in India included the two enclaves of Dadra and Nagar-Aveli which, in
    mid-1954, had passed under an autonomous local administration. Portugal claimed that it had a
    right of passage to those enclaves and between one enclave and the other to the extent necessary
    for the exercise of its sovereignty and subject to the regulation and control of India ; it also claimed
    that, in July 1954, contrary to the practice previously followed, India had prevented it from
    exercising that right and that that situation should be redressed. A first Judgment, delivered on 26
    November 1957, related to the jurisdiction of the Court, which had been challenged by India. The
    Court rejected four of the preliminary objections raised by India and joined the other two to the
    merits. In a second Judgment, delivered on 12 April 1960, after rejecting the two remaining
    preliminary objections, the Court gave its decision on the claims of Portugal, which India
    maintained were unfounded. The Court found that Portugal had in 1954 the right of passage
    claimed by it but that such right did not extend to armed forces, armed police, arms and
    ammunition, and that India had not acted contrary to the obligations imposed on it by the
    existence of that right.

    FACTS:
     The Government of Portugal held several small enclaves of territory within India, claiming
    they had a right of passage to its territories over Indian land, claiming that such right
    comprised of a transit for persons and goods, including armed forces and upholders of law
    and order without restrictions to effectively exercise its sovereignty.
     The Government of Portugal claims that India has and is continuing to prevent them from
    exercising such right.
     The Government of Portugal then asks the court to adjudge that India allow Portugal to
    exercise its right.
     The Government of India pointed out that the court had no jurisdiction over the matter, but
    later on accepted the court’s jurisdiction through its objections.
    ISSUES:
     WON the Government of Portugal had a valid right of passage (Yes)
     WON the Government of India had validly prevented the exercise of such right. (Yes)
    RATIO:
     Historically the case went back to a period when, and related to a region in which, thee
    relations between neighboring States were not regulated by precisely formulated rules but
    were governed largely by practice: finding a practice clearly established between two States,
    which was accepted by the Parties as governing the relations between them, the Court must
    attribute decisive effect to that practice. The Court was, therefore, of the view that no right
    of passage in favor of Portugal involving all correlative obligation on India had been
    established in respect of armed forces, armed police and arms and ammunition.

    It was common ground between the parties that passage of private persons and civil
    officials had not been subject to any restrictions beyond routine control. The court therefore
    concluded that, with regard to private persons, civil officials and goods in general there had
    existed a constant and uniform practice allowing free passage between the territories in
    question and that practice had been accepted as law by the parties as was the local custom
    established.

     The Court was of the view that India's refusal of passage was covered by its power of
    regulation and control of the right of passage of Portugal in accordance with general
    international custom or general principles of law recognized by civilized nations.

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