Re: [wanabidii] UK top judge backed Malawi in lake dispute

So the case is judged before is tried! Very interesting.

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------Original message------
From: Charles Banda <chasbanda@gmail.com>
To: <wanabidii@googlegroups.com>
Date: Monday, July 29, 2013 10:11:09 AM GMT+0300
Subject: [wanabidii] UK top judge backed Malawi in lake dispute

A Legal opinion by the former President of the International Court of
Justice (ICJ)—which may handle the Malawi-Tanzania
lake<http://mabvutojobani.com/2013/07/14/president-banda-says-malawi-not-ready-for-any-interim-deal-on-lake-dispute-with-tanzania/>
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.

HISTORICAL CONTEXT
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.

http://mabvutojobani.com/2013/07/20/uk-top-judge-backed-malawi-in-lake-dispute/

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