India Before and After the Right of Passage Case

5 Asian Journal of International Law (2015),pp 176 - 208, DOI: 10.1017/S2044251314000071

34 Pages Posted: 8 Nov 2013 Last revised: 20 Jan 2015

Date Written: November 8, 2013

Abstract

The Right of Passage case flagged off India’s adversarial tryst with international law, in which Portugal had argued for the validity of a 1779 treaty signed with the Marathas. India had denied its existence and interpretation. Within the UN Charter, India’s subsequent assimilation of Goa constituted illegal invasion, with which the Indian Supreme Court disagreed. Subsequently, Britain deployed its colonial de jure distinction by refusing to recognize India’s control of Goa. However, for Nehru, Goa was ‘‘a symbol of decadent colonialism trying to hold on’’. The Right of Passage case profoundly shaped India’s post-colonial foreign policy by coupling India’s body politic with its judiciary. Since then, the Lotus case continues to enamour the Indian government. This paper considers the views of the Indian government, judiciary, and publicists to examine whether India has been able to advance a specific approach to international law.

Keywords: Right of Passage, India, Portugal, Colonial Treaties, Indian Supreme Court, the ICJ, WTO, Italy, UNCLOS

JEL Classification: K33, N45, N75

Suggested Citation

Singh, Prabhakar, India Before and After the Right of Passage Case (November 8, 2013). 5 Asian Journal of International Law (2015),pp 176 - 208, DOI: 10.1017/S2044251314000071, Available at SSRN: https://ssrn.com/abstract=2351892

Prabhakar Singh (Contact Author)

Jindal Global Law School (JGLS) ( email )

Jindal Centre 12 Bhi12 Bhikaiji Cama Place
Near Jagdishpur Village
New Delhi, Uttar Pradesh/Haryana 110 066
India

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