EMT
Platinum Member
- Jan 13, 2010
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Totally confused! So what can you say about Membe's statement Mkuu?
Mkuu EMT,
Sijampotosha mtu. Nilikuwa najaribu kumwelezea in simple language uhusiano wa ICC na ICJ. Ukienda ndani ni kweli kuna tofauti nyingi kati ya mahakama hizo. Ni sawa na mtu kuelezea utofauti wa mahakama kuu ya Tanzania na ile mahakama kuu ya Zanzibar. Binafsi in a simple language nitasema ICJ ndio World courts na hizo zingine zina jurisdiction ndogo kuliko ICJ.
Any way lengo langu likuwa kutafsiri statement ya Membe kitu ambacho ni kweli kama alivyosema kwamba Tanzania ni member lakini haijatoa tamko kukubali maamuzi ya ICJ. Ni member kwasababu nchi zote za UN automatically zinakuwa part ya hii ICJ.
Lakini jurisdiction ina mambo manne ambayo inafuata:
1. Nchi kutoa tamko kutambua maamuzi ya hiyo court.
2. Nchi wahusika kuamua kwenye issue specific kwamba watatambua maamuzi.
3. kwenye mkataba unaoongelewa kuwa na kifungu ambacho kinaonyesha wazi kwamba ICJ atakuwa mwamuzi kwenye ugomvi utakaotokana na mkataba huo.
4. Hii ya nne nimeshindwa kuielewa vizuri.
Membe yuko sahihi na hata lecturer mmoja wa malawi kaelezea hivyo hivyo kwamba Malawi haiwezi kuishitaki Tanzania ICJ bila Tanzania kukubali kwenda huko.
Right. Tanzania is entitled to appear before the ICJ since 16 December 1964. However, Tanzania has not made a declaration to recognize the compulsory the jurisdiction of the ICJ. Malawi is entitled to appear before the ICJ since 1 December 1964. Malawi also made a declaration on 12 December 1966 to recognize the compulsory the jurisdiction of the ICJ.
What is the implication for making or not making a declaration to recognise the compulsory the jurisdiction of the ICJ? A State which has recognized the compulsory jurisdiction of the ICJ has in principle the right to bring any one or more other State which has accepted the same obligation before the ICJ by filing an application instituting proceedings with the ICJ, and, conversely, it has undertaken to appear before the ICJ should proceedings be instituted against it by one or more such other States.
Kwa maana hiyo Membe anaweza kuwa kweli kuwa Malawi cannot bring a case at the ICJ unless Tanzania agrees, but Tanzania can bring a claim against Malawi at the ICJ without the agreement of Malawi because Malawi has accepted compulsory jurisdiction of the ICJ.
But there are two issues. First, under what international agreement, Tanzania is relying? Does such international agreement does not state that in case of any dispute, it should be referred to the ICJ? I am asking this because it may be that the treaty or the convention Tanzania is relying provides that in case of any dispute, it should be referred to the ICJ?
Secondly, Membe anatuambia kuwa Tanzania wants to solve this issue once and for all. Sasa kama the only way to solve this problem is through the ICJ, Tanzania itakakataa kuitumia ICJ to solve the problem? Malawi does not want mediation being proposed by Tanzania. Kama Malawi hawataibuka kwenye hiyo meeting ijayo kuchagua mediator, basi Tanzania itajichagulia mediator yenyewe. I thought a mediator must be chosed by both parties? Neither one really believes that fighting is an option that either side would countenance.
Hapa naona tuu the most effect way would be to refer the issue to the ICJ as I can't see negotiations going anywhere. Huu mgogoro umekuwepo looong time na negotiations zilishindikana, sembuze leo tena baada ya kugundulika kwa gas humo ziwani?
The ICJ imeshatatua far trickier boundary disputes kati ya Cameroon and Nigeria juu ya Bakassi Peninsula and Ziwa Chad (Case of Land and Maritine Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) (merits) judgment of 10 October 2002). ICJ pia imetatua mgogro wa mpaka kati Burkina Faso and Mali na pia and Libya and Chad.
Tanzania inaogopa kwenda ICJ kwa sababu kuna uwezekano mkubwa itakula kwetu. It is clear that the Heligoland Treaty 1890 holds the key in this dispute. This treaty remains the only evidence as to where the border lies. And the most critical this is that since then the African Union has constantly maintained that African states should adhere to the boundaries as they existed at independence - and a resolution to this effect was adopted at Cairo in 1964.
In deed, he Constitutive Act of the African serves as the as the supreme law on the African continent. Therefore, Malawi and Tanzania as members of the African Union are bound to respect the Lake Nyasa border as it was at independence.
In the absence of any evidence that the borders were altered by the British, the matter would ultimately fall back on the Heligoland Treaty 1890. Indeed, the ICJ referred to the agreements that were signed between the former colonial powers – namely Britain, France and Germany – in deciding the dispute between Cameroon and Nigeria over the Bakassi Peninsula and Lake Chad since the ICJ acknowledges that such agreements constitute binding agreements, like treaties.
Najua Tanzania ina-rely pia on a principle of international law to the effect that where countries are separated by a body of water, the boundary separating the countries lies along the middle of the body of water (Convention on the Law of the Sea 1982). Some argue that the Convention applies to internal waters such as lakes, whilst others argue that this principle only applies to coastal areas and oceans and so does not apply to Lake Nyasa.
Interestingly, the countries that are separated by Lake Victoria – namely Tanzania, Uganda and Kenya – do share ownership of the lake. However, they do not share it equally.Wasije Wakenya na Waganda wakadai tugawane Ziwa Victoria equally.
Quite interesting.