Case Concerning right of passage over Indian territory Portugal v. India Merits Preliminary objections 1957

Portugal had two enclaves in the Indian Peninsula. In respect of the communications between those enclaves and the coast she alleged to have a right of passage through Indian Territory. 1954 India prevented Portugal from exercising the right of passage. Portugal instituted proceedings based on optional clause. India alleged that his declaration accepting jurisdiction had two reservations: 1. Exclude questions which by IL fall exclusively within the jurisdiction of India. 2. Only accept disputes arising after Feb 1930, with regard to situation or facts subsequent to the same date. She also contended that no local custom can be developed just by two states

In respect of jurisdiction: 1. In the course of proceedings Portugal expressly had taken its stand on grounds which were on the international plane. 2. A dispute does not arise until all its constituents’ elements had come into existence. The PCIJ draw in 1938 (electricity company of Sofia Bulgaria) a distinction between facts constituting source of rights claimed by the parties and facts that were 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 court held that the dispute arose in 1954, when India contested the right of passage. Merits: Portuguese sovereignty over the enclaves was recognized by British in facts and tacitly by India. With regard private persons there had been a constant and uniform practice allowing free passage and such practice had been accepted as law by the parties and had given rise to a right and a correlative obligation. As regards armed force such passage only had taken place with previous authorization, and although the permission was always granted, it was not given as an obligation. The refusal of passage in 1954 was covered by the Indian power of regulation and control of the right of passage.