Case Brief Wiki


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.


Does Portugal have a right to free passage over Indian territory to access its enclaves?


A right of passage for non-military civilians exists as a rule of regional customary international law between India and Portugal.


India argued before the Court that practice between only two states was not sufficient to form a local custom. The Court rejected this reasoning, finding no reason why a century and a quarter of practice based on mutual rights and obligations was insufficient for local custom to arise. This local practice, thus, prevailed over any general rules.


Local customary law can exist as long as the elements in the North Sea Continental Shelf case are made out.