A Legal opinion by the former President of the International Court of Justice (ICJ)—which may handle the Malawi-Tanzania lake dispute if diplomacy fails—backs Malawi’s claim that it owns the entire lake.
The highly respected British judge Professor Rosalyn Higgins, QC, authored the opinion in 1988 as a consultant for Mobil Oil Corp which wanted to explore for oil and gas on the lake through Tanzania.
The firm wanted the Professor—hired before she was appointed to the ICJ—to establish the validity of Tanzania’s territorial claims to the lake.
The legal position, kept under wraps for 25 years, is a potential game changer in the 50-year-old dispute.
The crux of the opinion reads: “While the boundary between Malawi and Tanzania is Lake Nyasa [Malawi and] is a complicated issue, and not without its difficulties, I feel that the legal claims of Malawi to all of Lake Nyasa, and the submerged lands there under, is considerably the better claim,” said Judge Higgins.
The Professor also tore into the so-called “median” map that Dodoma has been brandishing as showing the lake split in half.
The legal opinion also gives Malawi impetus to push the case to the ICJ if current mediation efforts by the Forum of former Heads of States and governments fail.
Last week, President Joyce Banda made her strongest position yet on Lake Malawi, believed to be endowed with gas and oil.
She told former presidents Joachim Chissano of Mozambique and South Africa’s Thabo Mbeki that Malawi will not accept any interim arrangement with Tanzania and that if they fail to resolve the dispute by September 30 2013, Lilongwe will resort to ICJ.
CLAIMS OF OWNERSHIP
In the lake stand-off, Malawi asserts full ownership of the lake except the south-eastern stretch in Mozambique whereas Tanzania is claiming the north-eastern half on its shores.
Malawi’s argument is based on a July 1 1890 treaty between Britain and Germany that maps the boundary between the two countries along the Tanzanian shore.
On the other hand, Tanzania is invoking the 1982 UN Convention on Law of the Sea that stipulates that in cases where nations are separated by a water body, the boundary lies in the middle of the water source.
According to the Anglo-German Treaty, the boundary “follows the course of the Ruvuma to the point of the confluence of the Msinje; thence it runs westward to Lake Nyasa; thence striking northward, it follows the eastern, northern and western shores of the lake to the northern bank of the mouth of the River Songwe; it ascends that river to the point of intersection by 30 degrees of east longitude….”
This treaty, the earliest available record of the boundary, places the boundary between then German East Africa and Nyasaland on the Tanzanian shore, according to the first volume of The Map of Africa in 1909.
A subsequent Anglo-German agreement of 1901 on the partition of Nyasaland and Tanganyika (Tanzania Mainland) modified the bank of Songwe River but said nothing about the lake.
The status quo remained in force until the end of World War I in 1918, when losing Germany surrendered Tanganyika to the British mandate of East Africa in accordance with the Versailles Treaty of 1999.
However, there were undocumented shifts of the border when Tanzania was placed under the United Nations (UN) Trust later.
Malawi sits to the west of Africa’s third-largest lake, known as Lake Malawi in Malawi and Lake Nyasa in Tanzania.
Lilongwe claims the entire northern half of the lake whereas Tanzania, to the east, says it owns half of the northern area. The southern half is shared between Malawi and Mozambique.
JUDGE ROSALYN HIGGINS
Professor Higgins was the first female judge to be appointed to the ICJ. She was elected President in 2006 until 2009 when she retired. Born in London on June 2, 1937, Professor Higgins is a Fellow of the British Academy; Fellow of the American Academy of Arts and Sciences and written widely on international law.
She received the prestigious Wolfgang –Friedman Medal for services to International Law among several other awards and honours.
She was Professor of International Law at University of Kent at Canterbury from 1978-1981; Professor of International Law at University of London from 1981-1995.
She was a Barrister at law, practising in public international law and petroleum law. She did her practice in the English courts and before various international tribunals, including the European Court of Human Rights and the Court of the European Communities.
To reach the conclusion that Malawi owns the entire lake, Prof Higgins looked at historical papers and maps during a period between 1890 and 1922.
She also studied and looked at relevant treaties and gave a historical perspective of the deteriorating relations between Portugal and Britain over domination of the river approaches to and from shores of lake Nyasa.
In her legal opinion, Higgins observes that in 1891, a treaty was signed between Portugal and Britain, defining their respective spheres of influence.
The Portuguese spheres of influence covered the portion on the eastern shore of Lake Malawi lying immediately to the south of the southern boundary of German East Africa (Tanzania).
“No part of the Lake itself was declared by the Treaty to be Portuguese,” she said.
In a declaration of 1886, Germany and Portugal had already pronounced the limits of their respective spheres of influence in southern Africa.
By an agreement of the same year with Britain, the German sphere of influence on the East African Coast was fixed, but the Western limit was left undefined.
“Eventually, Britain offer to cede Heligoland, in the North Sea [The North Sea is a marginal sea of the Atlantic Ocean located between Great Britain, Scandinavia, Germany, the Netherlands, Belgium, and France], led to the agreement with Germany over Lake Nyasa.
“The agreement between Great Britain and Germany, respecting Zanzibar, Heligoland, and the spheres of influence of the two countries in Africa, was signed on July 1 1890,” her opinion reads in part.
Article 2 of the 1890 Treaty provides that the sphere of influence reserved to Germany in Eastern Africa is bounded.
“It can readily be seen on any map that all of Lake Nyasa was excluded from the German sphere of influence and that the sphere boundary was on the eastern side of the Lake down to Chicure, where the line turned directly eastward until it joined with River Rovuma.
The land to the north of this east-west line is today what is Tanzania, and to the south is that is today Mozambique,” the opinion reads in part.
Professor Higgins observed that although the 1890 Treaty is absolutely clear, claims have nonetheless been made that the boundary ran not along the east shores of Lake Nyasa, but along the north-south median line.
She explains that the starting point for these claims was the fact that the 1890 Treaty did not establish a boundary as such; rather, it delimited spheres of influence.
“No formal or physical demarcation of the shore boundary was ever done. This was probably because “at the time it seemed obvious that a boundary defined in terms of a lake shore was self -demarcating.
However, the fact remains that the Eastern shore line was never formally changed from an agreement on a sphere of influence to an agreement on a precise boundary,” Prof Higgins observed.
MALAWI OWNS LAKE
After an extensive research of historical papers and maps aided by her PhD student identified as Mr S. Akweenda, Judge Higgins came up with 14 points drawing from Article V111 of the 1891 Treaty, the Rhoades and Phillips map, among other pertinent documents.
She also quoted other legal studies on the boundary such as McEwan and Mayall, who both found Malawi’s claim as the owner of the entire lake much stronger.
“The Tanzanian claim does not seem to have been kept alive in a very active way since 1967. If this period were to be regarded as at all relevant in the determination of the boundary [which I do not believe to be the case], then more detailed information would be needed as to activities of either government on the lake, any further diplomatic exchanges, press statements,…” she said.
She admitted that the official documents relating to Nyasaland and to Tanzania from time to time show the median line as the boundary but dismissed this as evidence that the lake is shared.
“The evidence seems to me not to reveal any considered uncertainty by the colonial office, in respect of Nyasaland, as to whether the Eastern shoreline could be maintained in the face of German Sovereign acts of 1892 -1922. I have seen in the records no indication of such concerns,” she said.
She also agreed with Malawi’s current position that if the Treaty of 1891 was the basis, ipso facto, for demarcation of the frontier, then it matters not that it entails a method that is less frequently used in lakes than median line delimitation.
The dispute over ownership—which started in the early 1960s and cooled off soon after—resurfaced after the late president Bingu wa Mutharika awarded exploration licenses to United Kingdom-based Surestream Petroleum in 2011 to search for oil and gas on Lake Malawi.
Tanzanian authorities want Surestream Petroleum to postpone any planned drilling on the lake until the dispute is resolved. But Malawi has remained defiant and the following year awarded the second-largest oil exploration license (after the Surestream license) to South African company SacOil Holdings Limited.
So far, oil companies have yet to begin drilling and have been stopped from exploring the centre of the lake until the wrangle is settled.
But several fishing families along the lake in the northern region are already caught up in this row, making the fishermen from both sides fear that the two countries will eventually go to war.