RIGHT OF PASSAGE CASE (PORTUGAL V. INDIA)

RIGHT OF PASSAGE CASE (PORTUGAL V. INDIA)

 

FACTS

The case is concerning Right of Passage between the Portuguese territory of Daman and two parcels of land territory surrounded by the territory of India and the passage between the two enclaves.

Portugal claimed that it had a right of passage to the extent necessary for the exercise of its sovereignty and subject to the regulation and control of India - India had prevented it from exercising that right.

ISSUE

Does Portugal have a customary right over Indian territory to its enclaves?

 

HELD

• Right of passage has been defined with sufficient precision to enable the Court to pass upon it.
• India tacitly recognised the Portuguese Sovereignty, achieving the characteristics of Portuguese enclaves within India -during the British and Post British periods there had developed a passage to the enclaves, the practice on which Portugal relies for establishing their right, formulated on the basis of local custom.
• Local Custom - no reason why long, constant, uniform and continued practices between 2 States, based on mutual rights and obligations was insufficient for local custom to arise.
• During the British and post British period armed forces and police did not pass between the territories as a matter of right, but with previous authorisation - Goods, other than arms and ammunitions, pass freely between Daman and the enclaves subject only to customs regulations and control as per considerations of security or revenue.