Chakwera must tell TZ hands off or face fire: 1890 hillogoland treaty defends Malawi

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”) concerns the location of the border between the two States on, or at the perimeter of Lake Nyasa/Malawi (“the Lake”). The Lake is the third largest in Africa, sitting at the bottom of the Great African Rift Valley and covering approximately 29,600 square kilometers. The Lake’s shoreline runs around western Mozambique, eastern Malawi, and southern Tanzania. The contestation relates to whether the boundary demarcating sovereign territory (or territorial waters) runs along the middle of the Lake, or along the Lake’s eastern shoreline of the territory of Tanzania. The dispute, therefore, relates to whether Tanzania or Malawi exercises sovereignty over the eastern half of the northern part of the Lake separating Tanzania and Malawi.

The border dispute escalated in 2011 when Malawi awarded oil exploration licenses covering the disputed part of the Lake to Surestream Petroleum. The aggravation of Malawi’s distribution of exploration rights based upon unilateral assertion of sovereignty elevates the respective interests by signaling potentially lucrative sources of government revenue. Possible resource extraction also signals potential threats to commercial, cultural and environmental interests. Further, failure of the parties to resolve the dispute via peaceful means may also lead to local and potentially regional insecurity, further harming the aforementioned interests.

The dispute is complicated by historical shifts in the positions of the parties and the former colonial powers. Tanzania was a German colony until 1919 when it was awarded to Britain under the Treaty of Versailles. Thus Tanzania, alongside Malawi (then Nyasaland), became a British territory. While the British colonial view of the boundary may have been inconsistent, the German and British authorities had formally agreed under the 1890 Heligoland Treaty (“the Treaty”) that the border ran along the Lake’s eastern shore-line.

This paper begins by tracing the history of the boundary, before examining the interests of the respective parties and the utility and applicability of the available dispute resolution processes, including the International Court of Justice (“ICJ”). An evaluation of the legal merits of the claims is then carried out before concluding with an analysis of key elements instructing negotiations. While the paper provides a thorough consideration of how the law applies to the dispute, the authors also acknowledge the real-politic of the power differentials at play, and the non-legal instruments the respective parties wield to affect negotiations.

II THE HISTORY OF THE BOUNDARY

The border between Malawi and Tanzania was first demarcated by Great Britain and Germany via the Heligoland Treaty of 1890. The Treaty demarcated several boundaries, including that between Tanganyika and Nyasaland (the predecessors of Tanzania and Malawi). At that time Tanganyika was a German colony and Nyasaland, a protectorate of Great Britain.

Article 2 of paragraph 1 of the Treaty provided that the boundary between Nyasaland and Tanganyika ran along the eastern, 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 academic 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 until it reached the northern bank of the mouth of the Songwe River. It then continued up that river to its intersection point with the 33rd degree of east longitude. Hence the whole of the Lake was part of Nyasaland. Following WW1 Great Britain was given a class B League of Nations mandate over Tanganyika. In the present dispute over the Lake, this may be crucial to Tanzania’s argument. As Britain controlled territory on both sides of the Lake from 1919, Tanzania may argue that various governmental maps and reports are sufficient to redraw an international boundary given that negotiation and formal agreement would not have been necessary. This will be discussed further in the legal analysis section of this paper. The British “Annual Reports on Tanganyika” from 1924 to 1932 refer to a centre line as the Lake boundary.

2 In 1924 the British government issued a State Department report, which includes a geographical and historical note regarding colonization and territory in the area. The report describes the Western limit of previously German territory as 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 text was accompanied by a map (shown below) drawing the boundary between current-day Malawi and Tanzania as a median line through the section of the Lake that divides them. Below in Portuguese East Africa, there is a partial line splitting the Lake between Mozambique and Malawi. The failure of the line to continue after the word Nyasa may indicate an absence of express intent to re-draft the boundary. However, the text, accompanying the boundary line down the middle of the lake, signials British intent at the time that the border ran through the middle of the lake and not around 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), page 624.
3 Great Britain Colonial Office, Report by His Britannic Majesty’s government on the administration under mandate of Tanganyika Territory for the year 1924, Genève : Sociètè des nations; League of Nations, 1925.
4 Ibid.
2In 1925, the annual colonial report for Nyasaland stated 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 same year Great Britain advised the Council of the League of Nations that the boundary between Tanganyika and Nyasaland ran along the centre line of the Lake.6 A map showing the boundary running through the middle of the lake was submitted along with the report.

7 The text of the 1933 and 1934 Annual Reports on Tanganyika continue to refer to the median line as the boundary, however they include maps showing a shoreline boundary.

8 In reports from 1935 to 1938 both text and map indicate a boundary along the shore,

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

10 In 1959 the British Government advised the Government of Tanganyika that its legal advisers considered that no part of the Lake was within the boundaries of Tanganyika.

11 In May of that year, the Minister for Lands and Mineral Resources stated in the Tanganyika Legislative Council that the borders of Tanganyika remained as they were demarcated by the 1890 Treaty.12

On 30 November 1961 Tanganyika declared that it would honour bilateral treaties for two 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 statement signalled Tanganyika’s intent not to accept the boundary as running along the Lake’s periphery. In a speech to the National Assembly on 11 June 1962 following Tanzania’s independence, Prime Minister Rashidi Kawawa stated that no part of Lake Nyasa lay within the borders of Tanzania.

14 Further, Prime Minister Kawawa stated that the earlier statement of 30 November 1961 statement did not affect this issue.

15
Nyasaland similarly gained independence and became Malawi on 6 July 1964. At this point Malawi produced a booklet stating that Tanzania’s frontier included a quarter of the Lake. However mere publication of a booklet is insufficient to alter a boundary.

16 Further, as Tanzania was already an independent state by this time, Malawi did not enjoy the legal discretion to unilaterally alter the border. Were Malawi to have secured independence prior to Tanzania, it may have been possible for a Malawian government to alter the boundary.
5 ‘Nyasaland annual general report for the year 1925’, in Colonial Reports – Annual 1296, p. 2, viewed 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 study of boundary and territorial imperatives in 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 were members of the Organisation of African Unity (OAU) on 21 June 1964. On that date the OAU passed a resolution providing that;
“[…] all member states pledge themselves to respect the frontiers existing on their achievement of national independence.”

17 Tanzanian and Malawian assent to the resolution obligates them, under customary international law, to adhere to the border at the time of independence. In January 1967 Tanzania officially notified Malawi it considered the boundary to run through the middle of the Lake.

18 On 24 January 1967 the Government of Malawi informed Tanzania it would consider the issue and a further reply would follow.

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

20 Although Malawi’s President publicly rejected Tanzania’s claim as having no justification, Malawi did not issue a written response asserting its position other than a 1968 acknowledgement of Tanzania’s positon.

21 In an indication of Malawian intent, however, Malawi deployed patrol boats on the Lake in 1968.

22 From 1968 to the present day, no event of legal significance for the disputed border has occurred.

III RESOURCES, POLITICS AND DISPUTE MECHANISMS

Resources
Following the independence of the respective parties to the dispute, tensions relating to the delimitation of the Lake boundary dispute were exaggerated by contrasting attitudes and political policies.

23 These tensions have been further elevated by Malawi’s recent decision to explore potential exploitation of the Lake’s resources.

Authorities state that about 1.5 million Malawians and 600,000 Tanzanians depend on the Lake for food, transportation and other daily needs.

24 Many local environmentalists fear that drilling in the Lake will damage eco-tourism and the marine environment affecting Tanzania’s northern fishing region. Reports cite lakeshore communities greater concern as to the threat of oil exploration than the rights of the respective parties. The communities’ livelihood revolves around the approximately 1000 fish species inhabiting the Lake.

25 Fish, which constitute nearly 75% of animal protein consumed in Malawi, are essential to the national diet.

26 As at 1995, The World Bank and the Food and Agriculture Organisation recognised three categories of fisherman on Lake Malawi: artisanal, semi-commercial and commercial. The artisanal and traditional sector comprised small-scale fishermen who relied principally on non-motorised canoes and plank boats. The semi-commercial sector comprised pair-trawl operators who are assigned designated fishing territories. The commercial 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, viewed 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, viewed on 18 January 2014 http://www.scribd.com/doc/135817434/The-Malawi-Tanzania-Border-Dispute- Voices-from-the-frontiers.
26 Ibid.development assistance is currently being allocated to the commercial and semi-commercial sectors despite the fact they account for just 10-15% of the total catch from Lake Malawi.

27Mining, along with commercial agriculture, tourism, and energy is prioritised as for “quick wins” according to the Economic Recovery Plan (ERP) introduced by Joyce Banda’s Cabinet in 2012.

28 The Malawian government has granted oil and gas exploration licences on Lake Malawi under the Petroleum and Exploration Act 1983. The government has currently awarded four companies exclusive prospecting licenses for six blocks on the Lake

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