## Facts

- Portugal held coastal territories on India’s west coast, including Daman, and two enclaves associated with Daman (Dadra and Nagar-Aveli) entirely surrounded by Indian territory.
- For a long period under successive authorities, Portugal and the territorial sovereign allowed communications between Daman and the enclaves across intervening territory.
- Portugal asserted a right of passage necessary to administer the enclaves, while acknowledging the passage was subject to India’s regulation and control.
- In 1954, after political agitation and the occupation of the enclaves by Indian irregulars, India impeded Portuguese movements to and from the enclaves.
- Portugal filed proceedings in 1955 under the parties’ optional-clause declarations, seeking recognition of a right of passage for private persons, civil officials, goods, and also for armed forces, armed police, arms, and ammunition.
- India denied that any legally enforceable right existed, characterizing any earlier transit as tolerated practice and disputing any entitlement for military or coercive transit.

## Issues

1. Whether the Court had jurisdiction despite India’s reservations concerning domestic jurisdiction and temporal limits in its optional-clause declaration.
2. Whether a bilateral (local) customary rule existed granting Portugal a right of passage across Indian territory to the enclaves.
3. If a right existed, whether it extended beyond private persons, civil officials, and goods to armed forces, armed police, arms, and ammunition.
4. Whether India’s 1954 restrictions breached any established right of passage.

## Decision

- The Court rejected India’s joined preliminary objections on domestic jurisdiction and ratione temporis.
- The Court held that, in 1954, Portugal possessed a right of passage across Indian territory between Daman and the enclaves, and between the enclaves themselves, limited to what was necessary for Portuguese authority over the enclaves and subject to India’s regulation and control, as to private persons, civil officials, and goods in general.
- The Court held that Portugal did not, in 1954, possess a right of passage for armed forces, armed police, or arms and ammunition.
- The Court held that India did not act contrary to its obligations regarding the civil right of passage in 1954.

## Legal Principles

- A customary international law rule may be “local” and confined to two States if it is supported by consistent practice and acceptance as law (opinio juris) between them.
- The existence and scope of a claimed customary right depend on evidence of constant and uniform usage accepted as legally obligatory, assessed in light of the period immediately preceding the contested interference.
- A right of passage for enclaves may be limited by category: established practice can support a civil right (persons, officials, goods) without supporting any entitlement to military or paramilitary transit.
- Where a right of passage is subject to the territorial State’s regulation and control, restrictions may be lawful regulation in light of security and public order concerns, so long as they do not amount to a clear repudiation of the right itself.
- Determining whether an asserted right exists under international law is not a matter exclusively within a State’s domestic jurisdiction for purposes of optional-clause reservations.

## Conclusion

The Court recognized a bilateral customary right allowing Portugal civil passage to and between its enclaves under India’s regulatory control, denied any customary entitlement for military-related transit, and found no breach by India because the 1954 measures were treated as permissible regulation rather than a repudiation of the established civil right.


Right of Passage Over Indian Territory (Port. v. India), 1960 I.C.J. 6 (Apr. 12)