analysisBy Enoch Chilemba
There are fears that conflict might be looming between Malawi and Tanzania over the ownership of a portion of Lake Malawi - or rather of the oil reserves that are believed to lurk beneath its waters. The dispute arose 55 years ago but receded after Malawi made it clear that Tanzania did not have any rights over any section of the Lake. However, tensions remained - and Tanzania has steadfastly stuck to the old colonial name for the lake, referring to it as Lake Nyasa.
The peaceful status quo remained until around 2005 when rumours started surfacing that there was oil under the lake. In October 2011, Malawi awarded a licence to Surestream Petroleum, a UK based firm, to commence oil exploration on the lake.
Prodded into action by the thought of all that potential oil wealth, Tanzania recently resurrected its claims to 50 percent of the portion of the lake that forms its borders with Malawi - sparking outrage and an escalating war of words.
It is common knowledge that African boundaries were drawn by former colonial powers. The border between Malawi and Tanzania was set out in the treaty signed by Britain (representing Malawi) and Germany (representing Tanzania) in the Anglo-German Heligoland Agreement of 1 July 1890.
This critical agreement demarcated the boundaries involving a number of territories under British and Germany control, such as Tanzania, Malawi, Kenya, Ghana, Chad, Togo, Cameroon and Congo, among others.
Article 1 paragraph 2 of the Heligoland Treaty provides that the Malawi and Tanzania boundary runs '...along the eastern, northern, and western shores of the lake until it reaches the northern bank of the mouth of the Songwe River. It then continues up that river to its intersection point with the 33rd degree of east longitude'.
It all seems pretty clear since the Treaty draws the boundary along the shores of Lake Malawi thereby giving the entire body of water to Malawi.
However, maps drawn between 1922 and 1964 are inconsistent and inconclusive. Some maps show the shoreline border, while others show the border lying along the median line in the lake. Others do not indicate the borders at all. And there was also a confusing debate about whether or not Britain had altered the borders twice in the decades after it took control of Tanzania following the defeat of Germany in the First World War - once to draw it through the lake and then to return it to the shoreline.
But by the time of Malawi's independence in 1964, the consensus was that the border was along the shore even though Tanzania was never comfortable with - or convinced by - this position. Indeed, Tanzania raised the issue with Malawi again in 1967 but the countries did not settle the dispute.
After that the issue lay dormant until this year, when Tanzania asked Malawi to halt any further oil exploration on the lake until the dispute was resolved - a request that Malawi refuses to comply with. Ministerial level negotiations are underway but there are fears that the disagreement could escalate.
As members of the United Nations, Malawi and Tanzania are aware that disputes must be resolved amicably and that declaring war is not allowed except in self-defence. Similarly, the two countries are members of the African Union - and the AU Constitutive Act emphasises that all disputes among African states must be settled amicably under Article 4(e) and further prohibits the use of force under Article 4(f). Lastly, Tanzania and Malawi are members of the Southern African Development Community, which also enshrines the principle of peaceful settlements of disputes among states in Article 4(e).
And no one really believes that fighting is an option that either side would countenance. So what could the two countries do to finally bring this dispute to an end.
The most effective method would probably be to refer the dispute to the International Court of Justice if negotiations fail. The ICJ resolved the far trickier boundary disputes between Cameroon and Nigeria over the Bakassi Peninsula and Lake Chad (Case of Land and Maritine Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening) (merits) judgment of 10 October 2002). The ICJ has also resolved boundary disputes between Burkina Faso and Mali; and Libya and Chad.
Although the dispute might raise a number of legal issues under international law, it is clear that the 1890 Heligoland Treaty holds the key. This treaty remains the only evidence as to where the border lies. And the most critical since the AU has constantly maintained that African states should adhere to the boundaries as they existed at independence - and a resolution to this effect was adopted at Cairo in 1964.
Indeed, the AU Constitutive Act serves as the 'Constitution of Africa'- it is the supreme law on the African continent. Therefore, Malawi and Tanzania as members of the AU are bound to respect the Lake Malawi border as it was at independence.
In the absence of any evidence that the borders were altered by the British, the matter would ultimately fall back on the 1890 Heligoland Treaty. Indeed, the ICJ referred to the agreements that were signed between the former colonial powers - namely Britain, France and Germany - in deciding the dispute between Cameroon and Nigeria over the Bakassi Peninsula and Lake Chad since the ICJ acknowledges that such agreements constitute binding agreements, like treaties.
There is also a principle under international law to the effect that where countries are separated by a body of water, the boundary separating the countries lies along the middle of the body of water. But this principle - derived from the Convention on the Law of the Sea (1982) - only applies to coastal areas and oceans and so does not apply to Lake Malawi.
Incidentally, the countries that are separated by Lake Victoria - namely Tanzania, Uganda and Kenya - do share ownership of the lake. However, they do not share it equally. Uganda owns 45 percent, Tanzania 49 percent and Kenya just 6 percent.
So the situation does seem straightforward. And while people in both countries might be getting overly emotional and excited about the dispute, it is unlikely that the leaders will let their excitement boil over into border clashes.
Indeed, there is no need to fight about it at all - unless, of course, vast oil reserves are eventually discovered under the 'Tanzanian' portion!