I have been following the present border dispute between Tanzania and Malawi for quite sometimes now and I have read various comments, opinions and ideas from various individuals, diplomats and jurists from both sides of the dispute on this matter.
As an expert in International Laws, I feel obliged to share my views specifically on the International Customary Laws principles which Tanzanian side is establishing its argument; article VI of the treaty and the legality of article I(2) of Anglo-German Treaty of 1890 which Malawi is trying to rely on.
Drawing upon the experience of century, nations have constructed a customary international law for transboundary fresh water resources built around the principle of equitable utilization.
The earliest complete formulation of International Customary Law in the area of International Water Law was the Helsinki Rules on the Uses of International Rivers of the International Law Association of 1966. Other codifications of International Customary Law on the area of International Water Law are United Nations Conventions on the Law of the Sea, which was done at Montego Bay, 1982, United Nations Convention on Non-Navigational Uses of International Watercourses of 1997 and Berlin Rules on Water Resources of 2004.
A set of 16 principles were adopted and codified under International Customary Law with International Law association. Among those principles, the principle of equitable utilization and obligation not to cause significant harm to the dwellers of either side of transboundary waters were adopted and codified. International Customary Law (Jus Cogens) May be it is important to give a brief definition of International Customary Law.
In short this is a collection of customs and rules of behavior adopted and accepted by International Community to legally solve and regulate various issues of International Character and are primary sources of International Law. We should note here that there are two types of International Customary Laws, first we have International Customary Laws accepted by International Community or in other words we call them Jus Cogens and second we have customary law recognized by few nations.
Under the first type, Jus Cogens are those International Customs where Member States of International Community are not allowed to derogate. We should again note here that Jus Cogens are peremptory norms and have imperative powers and violation is not permitted. All jus cogens are customary international law through their adoption by states, but not all customary international laws rise to the level of peremptory norms (Jus Cogens).
States can formulate various treaties but the principle is that they should not violate the norms of International Customary Law or jus cogens. The acceptance of jus cogens is recognition of the fact that mere treaty between States cannot have the highest value but rather the need to maintain peace or whatever objective a treaty may have. We all know that the objective of Heligoland treaty was colonization.
Early jurists gave jus cogens the quality of natural law; it overrides all contradictory man-made laws. Two of the most important principles of International Customary Law as derived from various International Conventions governing transboundary waters are; first equitable utilization and second is the obligation not to cause significant harm to the dwellers or people of the both sides of transboundary waters.
These two principles were adopted under the auspice of human rights which are peremptory norms and jus cogens principles. There are other 14 principles but these are the first two by their order of arrangements and relevant to the Tanzania and Malawi border dispute. Water is unquestionably one of the most important of all the resources that human beings depend upon for their survival and prosperity.
We recognize water as life as in many preambles of international water protocols. It is one of the key issues as far as human rights are concerned. It is under the auspice of this fact the International Community under International Customary Law derived a principle of equitable utilization on the transboundary fresh water resources such as lakes, rivers etc and that border delimitation must consider that principle.
According to article 53 of the Vienna Convention on the Law of Treaties of 1969, a treaty is void if it conflicts with peremptory norm of general international law. The International Law Commission in its commentary gives the following examples that are contrary to jus cogens rules: A treaty permitting the commission of an act that is criminal such as slave trade, piracy, genocide etc
The use of force contrary to the principles of the United Nations Charter A treaty violating human rights Setting the border on the eastern shore of Lake Nyasa or in other words giving the whole lake to Malawi could mean threatening the survival and prosperity of the people living along the eastern shores of Lake Nyasa on Tanzanian side and violation of their human rights for survival and prosperity.
Article I (2) of the Anglo-German agreement of 1890 is contrary to the rules of jus cogens and hence Malawi should not rely on that particular article. According to the doctrine of thalweg under International Customary Law in the sphere of International Water Laws, the frontier between two States should be set at the middle of transboundary waters.
In the case of Burkina Faso - Mali case over the pool of In Abao, The International Court of Justice applied "equity infra legem" under the principle of equitable utilization to the division of frontier between these two States over the said pool. A section of that judgment between Burkina Faso - Mali states as follows: "It will be for the Parties... to fix the position of the pool of In Abao and to define two points lying on the same parallel of latitude, such that a straight line drawn between these points will divide the expanse of the pool in equal proportions between the Parties."
To be continued on Wednesday...................................................
Hamza Johari (LLM International Law) is a part time lecturer University of Dar es Salaam, National Institute of Transport and a former part time lecturer Mzumbe University and Essami Associate Consultant. He is a Secretary to the Council, Tanzania Civil Aviation Authority Consumer Consultative Council.