RIGHT OF PASSAGE OVER INDIAN TERRITORY CASE (Merits)

Portugal v. India

ICJ Reports 1960, p.6

(Local Custom- Whether a local custom could be established between only two States?)

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 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.

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. 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 forma1 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.

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 quel1 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 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 in 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[1]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 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, al1 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 al1 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 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 1 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.”

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[1]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[1]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 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 rules 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.

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 nationals 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[1]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.

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 employment 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.

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