The Malawi-Tanzania Boundary Dispute
Chris Mahony, Hannah Clark, Meghan Bolwell, Tom Simcock, Richard Potter, and Jia Meng1
New Zealand Centre for Human Rights Law, Policy and Practice – Working Paper 21, February 2014

INTRODUCTION

The dispute between The Republic of Malawi (“Malawi”) and The United Republic of Tanzania (“Tanzania”) issues the placement of the border between the 2 States on, or on the perimeter of Lake Nyasa/Malawi (“the Lake”). The Lake is the third largest in Africa, sitting on the backside of the Great African Rift Valley and masking roughly 29,600 sq. kilometers. The Lake’s shoreline runs round western Mozambique, japanese Malawi, and southern Tanzania. The contestation pertains to whether or not the boundary demarcating sovereign territory (or territorial waters) runs alongside the center of the Lake, or alongside the Lake’s japanese shoreline of the territory of Tanzania. The dispute, subsequently, pertains to whether or not Tanzania or Malawi workouts sovereignty over the japanese half of the northern a part of the Lake separating Tanzania and Malawi.

The border dispute escalated in 2011 when Malawi awarded oil exploration licenses masking the disputed a part of the Lake to Surestream Petroleum. The aggravation of Malawi’s distribution of exploration rights primarily based upon unilateral assertion of sovereignty elevates the respective pursuits by signaling doubtlessly profitable sources of presidency income. Possible useful resource extraction additionally indicators potential threats to industrial, cultural and environmental pursuits. Further, failure of the events to resolve the dispute by way of peaceable means may additionally result in native and doubtlessly regional insecurity, additional harming the aforementioned pursuits.

The dispute is sophisticated by historic shifts within the positions of the events and the previous colonial powers. Tanzania was a German colony till 1919 when it was awarded to Britain underneath the Treaty of Versailles. Thus Tanzania, alongside Malawi (then Nyasaland), grew to become a British territory. While the British colonial view of the boundary might have been inconsistent, the German and British authorities had formally agreed underneath the 1890 Heligoland Treaty (“the Treaty”) that the border ran alongside the Lake’s japanese shore-line.

This paper begins by tracing the historical past of the boundary, earlier than analyzing the pursuits of the respective events and the utility and applicability of the out there dispute decision processes, together with the International Court of Justice (“ICJ”). An analysis of the authorized deserves of the claims is then carried out earlier than concluding with an evaluation of key parts instructing negotiations. While the paper gives an intensive consideration of how the legislation applies to the dispute, the authors additionally acknowledge the real-politic of the facility differentials at play, and the non-legal devices the respective events wield to have an effect on negotiations.

II THE HISTORY OF THE BOUNDARY

The border between Malawi and Tanzania was first demarcated by Great Britain and Germany by way of the Heligoland Treaty of 1890. The Treaty demarcated a number of boundaries, together with that between Tanganyika and Nyasaland (the predecessors of Tanzania and Malawi). At that point Tanganyika was a German colony and Nyasaland, a protectorate of Great Britain.

Article 2 of paragraph 1 of the Treaty supplied that the boundary between Nyasaland and Tanganyika ran alongside the japanese, western 1 Chris Mahony is a candidate for DPhil in Politics at Oxford University, ex-officio Director of the New Zealand Human Rights Lawyers Association, and an instructional member of the New Zealand Centre for Human Rights Law, Policy and Practice. Hannah Clark, Meghan Bolwell, Richard Potter, Tom Simcock and Jia Meng are members of the New Zealand Human Rights Lawyers Association. Cite this paper as: “NZ Human Rights Working Paper 21: Where Politics Borders Law: the Malawi-Tanzania Boundary Dispute, New Zealand Centre for Human Rights Law, Policy and Practice, Africa Working Paper Series, February 2014.”

1 and northern shores of the Lake till it reached the northern financial institution of the mouth of the Songwe River. It then continued up that river to its intersection level with the thirty third diploma of east longitude. Hence the entire of the Lake was a part of Nyasaland. Following WW1 Great Britain was given a category B League of Nations mandate over Tanganyika. In the current dispute over the Lake, this can be essential to Tanzania’s argument. As Britain managed territory on each side of the Lake from 1919, Tanzania might argue that numerous governmental maps and experiences are enough to redraw a global boundary provided that negotiation and formal settlement wouldn’t have been needed. This might be mentioned additional within the authorized evaluation part of this paper. The British “Annual Reports on Tanganyika” from 1924 to 1932 confer with a centre line because the Lake boundary.

2 In 1924 the British authorities issued a State Department report, which features a geographical and historic notice concerning colonization and territory within the space. The report describes the Western restrict of beforehand German territory because the median line of the Lake:
“[…] Thence it follows the boundary of Rhodesia to the northern end of Lake Nyasa and continues along the centre line of Lake Nyasa to a point due west of the Rovuma River whence the boundary runs east and joins the Rovuma River, whose course it follows to the sea [emphasis added].”

3 The textual content was accompanied by a map (proven beneath) drawing the boundary between current-day Malawi and Tanzania as a median line by way of the part of the Lake that divides them. Below in Portuguese East Africa, there’s a partial line splitting the Lake between Mozambique and Malawi. The failure of the road to proceed after the phrase Nyasa might point out an absence of specific intent to re-draft the boundary. However, the textual content, accompanying the boundary line down the center of the lake, signials British intent on the time that the border ran by way of the center of the lake and never across the periphery.
Map of Lake Nyasa (British Colonial Office 1924)

4 2 James Mayall, ‘The Malawi Tanzania Border Dispute’, Journal of Modern African Studies Vol. 11 No. 4 (Dec 1973), web page 624.
3 Great Britain Colonial Office, Report by His Britannic Majesty’s authorities on the administration underneath mandate of Tanganyika Territory for the yr 1924, Genève : Sociètè des nations; League of Nations, 1925.
4 Ibid.
2In 1925, the annual colonial report for Nyasaland acknowledged that:
“This strip falls naturally into two divisions: (1) consisting of the western shore of Lake Nyasa, with the high tablelands separating it from the basin of the Luangwa river in Northern Rhodesia, and (2) the region lying between the watershed of the Zambesi river and Shire river on the west, and the Lakes Chiuta and Chilwa and the river Ruo, an affluent of the Shire, on the east, including the mountain systems of the Shire Highlands and Mlanje, and a small portion, also mountainous, of the south-eastern coast of Lake Nyasa.”

5 In the identical yr Great Britain suggested the Council of the League of Nations that the boundary between Tanganyika and Nyasaland ran alongside the centre line of the Lake.6 A map displaying the boundary working by way of the center of the lake was submitted together with the report.

7 The textual content of the 1933 and 1934 Annual Reports on Tanganyika proceed to confer with the median line because the boundary, nevertheless they embody maps displaying a shoreline boundary.

8 In experiences from 1935 to 1938 each textual content and map point out a boundary alongside the shore,

9 as do Annual Colonial Reports on Nyasaland from 1948 to 1953.

10 In 1959 the British Government suggested the Government of Tanganyika that its authorized advisers thought-about that no a part of the Lake was throughout the boundaries of Tanganyika.

11 In May of that yr, the Minister for Lands and Mineral Resources acknowledged within the Tanganyika Legislative Council that the borders of Tanganyika remained as they had been demarcated by the 1890 Treaty.12

On 30 November 1961 Tanganyika declared that it will honour bilateral treaties for 2 years and would then regard as terminated all treaties “which could not by the application of the rules of customary international law be regarded as otherwise surviving.”

13 This assertion signalled Tanganyika’s intent to not settle for the boundary as working alongside the Lake’s periphery. In a speech to the National Assembly on 11 June 1962 following Tanzania’s independence, Prime Minister Rashidi Kawawa acknowledged that no a part of Lake Nyasa lay throughout the borders of Tanzania.

14 Further, Prime Minister Kawawa acknowledged that the sooner assertion of 30 November 1961 assertion didn’t have an effect on this concern.

15
Nyasaland equally gained independence and have become Malawi on 6 July 1964. At this level Malawi produced a booklet stating that Tanzania’s frontier included 1 / 4 of the Lake. However mere publication of a booklet is inadequate to change a boundary.

16 Further, as Tanzania was already an unbiased state by this time, Malawi didn’t benefit from the authorized discretion to unilaterally alter the border. Were Malawi to have secured independence previous to Tanzania, it might have been potential for a Malawian authorities to change the boundary.
5 ‘Nyasaland annual general report for the year 1925’, in Colonial Reports – Annual 1296, p. 2, considered on 5 January 2014, http://www.libsysdigi.library.illinois.edu/ilharvest/Africana/Books2011- 05/469188/469188_1925/469188_1925_opt.pdf.
6 A Che-Mponda,

The Malawi-Tanzania border and territorial dispute, 1968: A case research of boundary and territorial imperatives within the new Africa, PhD Thesis, Howard University, 1972, p. 109.
7 Ibid, p.136.
8 Ibid.
9 Ibid.
10 Mayall, p.625.
11 Che-Mponda, p. 163. 12 Mayall, p. 613.
13 Ibid, p. 616.
14 Che Mponda, p. 142. 15 Mayall, p. 616.
16 Che Mponda, p. 110.

Both Malawi and Tanzania had been members of the Organisation of African Unity (OAU) on 21 June 1964. On that date the OAU handed a decision offering that;
“[…] all member states pledge themselves to respect the frontiers existing on their achievement of national independence.”

17 Tanzanian and Malawian assent to the decision obligates them, underneath customary worldwide legislation, to stick to the border on the time of independence. In January 1967 Tanzania formally notified Malawi it thought-about the boundary to run by way of the center of the Lake.

18 On 24 January 1967 the Government of Malawi knowledgeable Tanzania it will contemplate the problem and an extra reply would comply with.

19 On 31 May 1967 the Tanzanian President, in a letter to his Malawian counterpart, suggested that Tanzania rejected the shoreline boundary.

20 Although Malawi’s President publicly rejected Tanzania’s declare as having no justification, Malawi didn’t concern a written response asserting its place apart from a 1968 acknowledgement of Tanzania’s positon.

21 In a sign of Malawian intent, nevertheless, Malawi deployed patrol boats on the Lake in 1968.

22 From 1968 to the current day, no occasion of authorized significance for the disputed border has occurred.

III RESOURCES, POLITICS AND DISPUTE MECHANISMS

Resources
Following the independence of the respective events to the dispute, tensions referring to the delimitation of the Lake boundary dispute had been exaggerated by contrasting attitudes and political insurance policies.

23 These tensions have been additional elevated by Malawi’s latest resolution to discover potential exploitation of the Lake’s assets.

Authorities state that about 1.5 million Malawians and 600,000 Tanzanians rely on the Lake for meals, transportation and different every day wants.

24 Many native environmentalists concern that drilling within the Lake will injury eco-tourism and the marine setting affecting Tanzania’s northern fishing area. Reports cite lakeshore communities larger concern as to the specter of oil exploration than the rights of the respective events. The communities’ livelihood revolves across the roughly 1000 fish species inhabiting the Lake.

25 Fish, which represent almost 75% of animal protein consumed in Malawi, are important to the nationwide weight-reduction plan.

26 As at 1995, The World Bank and the Food and Agriculture Organisation recognised three classes of fisherman on Lake Malawi: artisanal, semi-commercial and industrial. The artisanal and conventional sector comprised small-scale fishermen who relied principally on non-motorised canoes and plank boats. The semi-commercial sector comprised pair-trawl operators who’re assigned designated fishing territories. The industrial sector was solely made up of the Malawi Development Corporation (Maldeco). Press Foods Ltd, a subsidiary of Press Corporation Ltd, owns Maldeco. Most
17 Ibid, p. 81.
18 Ibid, p. 161.
19 Mayall, p. 619.
20 Che Mponda, p. 175.
21 Che Mponda, p. 162.
22 Ibid, 240.
23 Mayall, p. 611.
24 M Banda, ‘Two Million People Hold their Breach Over Lake Malawi Mediation’, in Inter Press Service News Agency. March 2013, considered on 10 December 2013, http://www.ipsnews.net/2013/03/two-million-people- hold-their-breath-over-lake-malawi-mediation/.
25 ‘The Malawi-Tanzania Border Dispute, Voices from the frontiers’ in Nation on Sunday, 14 April 2013, considered on 18 January 2014 http://www.scribd.com/doc/135817434/The-Malawi-Tanzania-Border-Dispute- Voices-from-the-frontiers.
26 Ibid.growth help is presently being allotted to the industrial and semi-commercial sectors regardless of the actual fact they account for simply 10-15% of the whole catch from Lake Malawi.

27Mining, together with industrial agriculture, tourism, and vitality is prioritised as for “quick wins” based on the Economic Recovery Plan (ERP) launched by Joyce Banda’s Cabinet in 2012.

28 The Malawian authorities has granted oil and fuel exploration licences on Lake Malawi underneath the Petroleum and Exploration Act 1983. The authorities has presently awarded 4 corporations unique prospecting licenses for six blocks on the Lake