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Abstract

This article examines the legal aspects of the respective claims by the two claimants to the northeastern stretches of the lake: to the eastern shoreline by Malawi and to the median line by Tanzania. Maluwa proceeds as follows. First, the Article sketches out the historical and political background of the dispute and examines some preliminary legal issues in Part I. Part II discusses the legal significance of boundaries, state succession to boundary treaties, and the relevance of post-colonial African state practice in this respect. A central aspect of this practice is the adoption by African states of the principle of uti possidetis juris (or, more commonly, uti possidetis) from the earliest days of their independence some fifty years ago. Part II addresses three additional, related issues: attribution of sovereignty over islands in the disputed section of the lake, apparent lapses or failures in colonial boundary demarcation, and the question whether the 1890 Agreement is a boundary treaty or a treaty of sphere of influence. Part III examines the issue of competition over resources as a factor in boundary disputes and the relevance of the concept of borderlands to this dispute. Part IV briefly assesses the prospects for SADC-sponsored third party mediation in light of the setbacks the SADC has already experienced, noting the wavering commitment to the process and apparent lack of trust displayed by one party. Maluwa argues that the failure of SADC mediation would not bode well for Tanzania, which prefers mediation to international judicial settlement. On the other hand, adjudication by the International Court of Justice (ICJ), which Malawi evidently favors, would likely validate Malawi’s position. Notwithstanding the fact that the ICJ is not formally bound by its own precedents, it is reasonable to assume that the Court’s decisions in previous boundary disputes involving other African states, some of which implicated the same Anglo-German Treaty, and its reaffirmation of the principle of uti possidetis in these cases, would suggest such an outcome. Maluwa concludes by reiterating the argument for a solution that upholds the principle of inviolability of borders, while allowing for shared management of border resources, consistent with the most recently developed norms of international law. This would transform the border from a barrier into a bridge, connecting the two states and their respective communities and serving as a shared environmental space. Such a solution would be in line with SADC’s own approach to regional integration, as exemplified by the regional body’s spatial development initiatives.

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