There is a new twist to the Malawi-Tanzania border dispute: The two countries have different stands on the jurisdiction of the UN International Court of Justice (ICJ), where matters may be taken to.
While Malawi says her final position is to refer the dispute to ICJ when dialogue fails, the world court would not automatically decide on the matter because Tanzania did not give compulsory jurisdiction to the court on interpretation of treaties and questions on international law.
Malawi and Tanzania are currently engaged in talks to diplomatically resolve the dispute through negotiation or other forms of settlement, including mediation or involvement of the African Union (AU) Panel of the Wise.
In an interview on Sunday, Minister of Foreign Affairs and International Cooperation Ephraim Mganda Chiume said Malawi and Tanzania do not have the same standing on the ICJ because the latter did not ratify the UN courtâ€™s statute.
Said Chiume: â€œOur findings are that Tanzania didnâ€™t ratify the ICJ treaty.
â€œWe will look at that when we meet again in Tanzania on 10th of September.â€
Checks on UN website on Sunday found that Tanzania does not appear among about 80 States which gave compulsory jurisdiction to the UN court to decide on some specific matters. Malawi declared compulsory jurisdiction to ICJ on November 22 1966.
â€œStates which have made declarations under Article 36, paragraph 2 of the Statute of the International Court of Justice or whose declarations made under Article 36, paragraph 2, of the Statute of the Permanent Court of International Justice are deemed to be acceptances of the compulsory jurisdiction of the International Court of Justice,â€ reads the UN web page.
Article 36 (2) of the ICJ Statute reads: â€œThe State parties to the present Statute may at any time declare that they recognise as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation.â€
While Malawi says the 1890 Heligoland Treaty between Britain and Germany gave it the whole lake, Tanzania argues it owns half of it because common international law stipulates that water bodies separating countries must be shared equally.
Chancellor College international law expert Dr. Mwiza Nkhata on Sunday said Tanzaniaâ€™s standing on the jurisdiction of ICJ means that the court cannot automatically intervene to help resolve the border dispute.
Said Nkhata: â€œThe implication is that ICJ does not have automatic jurisdiction on the matter. Tanzania may first of all have to make that specific declaration accepting the compulsory jurisdiction of the court.
â€œYou need both parties to the case to accept the compulsory jurisdiction of the court and not one country.â€
Chancellor College associate professor of law Edge Kanyongolo said he needed more time to look at various international law instruments before commenting on the matter, but said in the past, there have been some cases where other parties to disputes between countries have rejected rulings of ICJ because of jurisdiction issues.
Although Malawi and Tanzania have different standings on ICJâ€™s jurisdiction, both countries are still parties to the Courtâ€™s Statute, according to the 1945 UN Charter whose Article 93 (1) reads: â€œAll members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.â€
Principal Secretary for Foreign Affairs Patrick Kabambe on Sunday said Malawi and Tanzania could either make a joint submission to the court on the dispute or each of the countries could make their own submissions.