Portugal held several small enclaves of territory within India; one on the coast but the others inland. Portugal claimed they had a right of passage to its inland territories over Indian land which they alleged India had interfered with.
- does Portugal have a customary right over Indian territory to its enclaves?
A right of passage does exist in regional custom.
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.