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Some Legal Aspects of the Boundary Dispute Between Malawi and Tanzania Over Lake Malawi

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Some Legal Aspects of the Boundary Dispute Between Malawi and Tanzania Over Lake Malawi Michigan Journal of International Law Volume 37 Issue 3 2016 Oil Under Troubled Waters?: Some Legal Aspects of the Boundary Dispute Between Malawi and Tanzania Over Lake Malawi Tiyanjana Maluwa Pennsylvania State University School of Law Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the International Law Commons, Legal History Commons, and the Natural Resources Law Commons Recommended Citation Tiyanjana Maluwa, Oil Under Troubled Waters?: Some Legal Aspects of the Boundary Dispute Between Malawi and Tanzania Over Lake Malawi, 37 MICH. J. INT'L L. 351 (2016). Available at: https://repository.law.umich.edu/mjil/vol37/iss3/1 This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. ARTICLES OIL UNDER TROUBLED WATERS?: SOME LEGAL ASPECTS OF THE BOUNDARY DISPUTE BETWEEN MALAWI AND TANZANIA OVER LAKE MALAWI Tiyanjana Maluwa* TABLE OF CONTENTS INTRODUCTION ................................................. 352 I. HISTORICAL BACKGROUND, FACTUAL ABSTRACT AND PRELIMINARY LEGAL QUESTIONS ....................... 356 A. British and German Colonial Rule and the History of the Boundary: 1890–1967 ........................... 356 B. Legal Significance and Probative Value of Maps in Boundary Disputes: An Excursus.................... 368 C. Prelude to the Dispute: The Post–Independence Period, 1961–1967 .................................. 371 II. SIGNIFICANCE OF BOUNDARIES AND STATE SUCCESSION TO BOUNDARY TREATIES IN POST-COLONIAL AFRICAN STATE PRACTICE ....................................... 374 A. The OAU’s Resolution Concerning Boundaries: The Principle of Uti Possidetis Juris ..................... 380 B. The Determination of Boundaries in Contiguous Lakes and Sovereignty over Islands ................. 384 C. Foibles, Failures, and Lapses in Colonial Boundary Demarcation ........................................ 390 D. The Anglo-German Agreement of 1890: Boundary Treaty or Treaty of Sphere of Influence? ............ 393 III. COMPETITION OVER NATURAL RESOURCES AS A ROOT CAUSE OF BORDER DISPUTES ........................... 395 A. Protection of Customary Rights in Boundary Zones and Borderlands .................................... 398 B. SADC’s Spatial Development Initiatives and Shared Management of Borderland Resources ............... 406 IV. PROSPECTS AND PROBLEMS OF THE SADC MEDIATION PROCESS ............................................... 411 CONCLUSION ................................................... 414 * H. Laddie Montague Chair in Law, Pennsylvania State University School of Law. I am indebted to Trevor P. Chimimba (Senior Legal Officer, Codification Division, United Nations, New York) for his insightful comments and suggestions, made in his personal capacity, on an earlier draft of this article. 351 352 Michigan Journal of International Law [Vol. 37:351 INTRODUCTION The latest round of the dispute between Malawi and Tanzania over ownership of part of the northeastern stretches of Lake Malawi or Lake Nyasa,1 which erupted in mid-2012, may have come as something of a sur- prise to the international community.2 The casual observer must have been puzzled by the spectacle of two apparently friendly neighboring countries suddenly threatening to fall out due to contested sovereignty over the lake. After all, their relations had improved considerably over the two decades since the end of the 30-year single-party rule of former dicta- tor Dr. Hastings Kamuzu Banda in Malawi in 1994.3 More puzzling still, was the bellicose rhetoric that had not been heard since an earlier iteration 1. Throughout the colonial period the lake was known as Lake Nyasa. After its inde- pendence from Great Britain on July 6, 1964, Malawi renamed it Lake Malawi pursuant to the Alteration of Place Names Act, No. 2 of 1965. The Act was subsequently amended by the Regional and District Boundaries and Place Names Act, No. 42 of 1967, Cap. 18:04: An Act to provide for the division of Malawi into Regions and Districts and for alterations to such divisions to provide for the conferring and altering of place names and for matters connected therewith. The Act (Second Schedule, Item 1, First and Second Columns) reconfirms the name change from Lake Nyasa to Lake Malawi. For full text of the Act, see Blackhall’s LAW S OF MALAWI, REVISED LAW S VOL. III: REGIONAL AND DISTRICT BOUNDARIES AND PLACE NAMES, www.malawilaws.com. As is commonly known, from all official maps and documents published in Tanzania and public pronouncements by Tanzanian officials, Tanzania has never accepted this name change and has maintained the name Lake Nyasa in the period since 1965. The lake is known as Lake Niassa in Mozambique. In this article, I generally use the name Lake Malawi even when discussing events relating to the period prior to the name change by Malawi. The appellation Lake Malawi is generally accepted and used by the rest of the international community. However, I also occasionally use the name Lake Nyasa where the context so requires. 2. The current standoff arose on July 30, 2012, when Tanzania asked Malawi to halt oil and gas exploration activities in the lake until the dispute between the two countries involving the lake boundary is resolved. Malawi rejected this demand and reasserted its claim that the international boundary between the two countries runs along the eastern shore of the lake and not the median line, as Tanzania claims. This development resuscitated an old dispute that had been dormant since 1968. See Naomi Kok, Malawi: old border dispute with Tanzania flares up again, INST. OF SECURITY STUD.: CONFLICT PREVENTION AND RISK ANAL- YSIS DAILY BRIEFINGS, Aug. 8, 2012, at 2. 3. Political tensions between the two neighboring countries had endured for the greater part of the 30-year period from 1964 to 1994, when President Kamuzu Banda lost power following the first democratic elections since the country’s independence. The tensions were centered on three issues. First, the countries had contrasting attitudes and policies to- wards white minority regimes and the liberation struggles aimed at toppling them in Namibia, Rhodesia, South Africa and the Portuguese colonies of Angola and Mozambique. Second, President Banda suspected that Tanzania’s President Julius Nyerere was aiding and abetting attempts by certain prominent Malawian politicians exiled in Tanzania to subvert his regime—these were former cabinet ministers who had broken ranks with Banda over policy differences within a few months of the country’s independence and had fled into exile in Tanzania and Zambia after resigning or being dismissed from the cabinet. Lastly, there re- mained the unresolved dispute over the delimitation of the lake boundary between the two states. See James Mayall, The Malawi-Tanzania Boundary Dispute, 11 J. MOD. AFR. STUD. 611 (1973). Evidence of a thaw in the Malawi-Tanzania relations can be seen in the fact that, despite Malawi’s continuing complaints about Tanzania’s aid to President Banda’s oppo- nents, the two countries established diplomatic relations in 1985. Relations between the two countries were strengthened further in the immediate post-1994 period with the appointment Spring 2016] Oil Under Troubled Waters 353 of the dispute.4 The dispute over the lake boundary had first surfaced in May 1967 and simmered for a while until September 1968. Since then, it had not been the subject of any public statements by either side until it flared up again in July 2012. The current dispute can be traced to October 2011, when Malawi’s late president Bingu wa Mutharika awarded a contract to a British com- pany, Surestream Petroleum, to start gas and oil exploration on the east- ern part of the lake, including in the area claimed by Tanzania.5 The likelihood of a positive outcome to the prospecting gave rise to objections on the Tanzanian side, encompassing other disagreements over the use of the lake. Towards the end of July 2012, Tanzania announced plans to purchase a new nine million dollar ferry to operate on Lake Malawi’s wa- ters. Tanzanian authorities claimed that Malawian fishing and tourist boats were encroaching on Tanzania’s waters.6 This resurgence in the dispute was followed by a hurriedly arranged two-day meeting of top officials of resident ambassadors to each other’s capital, a situation that prevails to this day. See PO- LITICAL HANDBOOK OF THE WORLD 2014, 882 (Tom Lansford ed., 2014). 4. While senior authorities in both countries, including both former Malawian Presi- dent Joyce Banda (in office from April 2012 to May 2014) and current Malawian President Peter Mutharika, and Tanzania’s President Jakaya Kikwete, have variously proclaimed their determination to resolve the dispute peacefully and diplomatically, some authorities have also been reported in their respective local media expressing readiness to use armed forces to defend their sovereignty in relation to the disputed border. See, e.g., Courtney Meyer, Who Owns Lake Nyasa?, AFRICA JUSTICE FOUNDATION (Aug. 21, 2012), http://africajusticefounda tion.org/our-blog/news-articles/who-owns-lake-nyasa/ (quoting Edward Lowassa, chairman of Tanzania’s parliamentary committee for defense, as saying, “[w]e expect this conflict will be solved diplomatically . .. Malawi is
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