Former head of the International Court of Justice (ICJ)-which may handle the Malawi-Tanzania lake border dispute if diplomacy fails-gave a legal opinion which concludes that Malawi owns the entire lake.
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 Lake Malawi through Tanzania.
The firm wanted Higgins-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, but obtained by The Nation this week, is a potential game changer in the 50-year-old dispute.
Reads the crux of the opinion: “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.”
The professor also tore into the so-called “median” map that Dodoma has been brandishing as showing the lake split in half in the northern 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 State and Government fail.
On Sunday, President Joyce Banda made her strongest position yet on the Lake Malawi border dispute, believed to be endowed with gas and oil.
She told former presidents Joaquim Chissano of Mozambique and Thabo Mbeki of South Africa 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 turn to the 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.
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.
Higgins’ historical context
To reach the conclusion that Malawi owns the entire lake, 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).
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.
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.
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.
Malawi owns lake
After an extensive research of historical papers and maps aided by her PhD student identified as Mr S. Akweenda, Higgins came up with 14 points drawing mostly from Article V111 of the 1891 Treaty, the Rhoades and Phillips map.
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.
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 dispute over ownership-which started in the early 1960s and cooled off soon after-resurfaced after the former president the late Bingu wa Mutharika awarded exploration licenses to United Kingdom-based Surestream Petroleum in 2011 to search for oil and gas on Lake Malawi.
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.
In 2003, then president of Tanzania Benjamin Mkapa, on a visit to Malawi, said his country shall never lay claim of the lake.
Who is judge Rosalyn Higgins?
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, 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 and 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.