Tanzania and Malawi are on the brink of a diplomatic standoff

Tanzania and Malawi are on the brink of a diplomatic standoff following Dodoma’s decision to commence the upgrade of Mbamba Bay Port, situated on the shores of Lake Malawi.

Lilongwe accuses Tanzania of initiating the project without consultation, given the contested nature of the port between the two nations.

Malawi has faulted Tanzania for embarking on a project to upgrade and expand Mbamba Bay Port on Lake Malawi without seeking consent as the lake boundary dispute between the two countries remains unresolved.

The port of Mbamba Bay will be an important driver of the Southern market, increasing cargo and efficiency at Mtwara’s port. The Mtwara Development Project is a major infrastructure development project involving southern Tanzania, northern Mozambique, eastern Malawi and Eastern Zambia. The goal of this project is to provide road, rail and waterway access from the surrounding region to the Port of Mtwara.

Cargo from Mtwara Port will be transported by road to Mbamba Bay Port, which has the shortest distance and the lowest cost for transferring cargo to Malawi. The procurement process to find a contractor is on-going and compensation payments to people who were relocated to pave the way for the project have been made.

The Mbamba Bay project was crucial for economic growth in the southern part of Tanzania.

Malawi has formally requested Tanzania to suspend the project, a move likely to escalate tensions between the neighbouring countries.

In a letter to Tanzanian authorities, the Government of Malawi asserts that proceeding with the project on Malawian territory without consent is both irregular and illegal.

Malawi insists that the project should cease until proper consultations are conducted and consent is obtained from the Malawian government.

“The Government of Malawi would like to express that embarking on such a project on Malawi’s territory without the country’s consent is irregular and illegal, and request that the project be halted until such necessary consultations and upon being given consent from the government of Malawi,” reads a letter.

Furthermore, Malawi urges Tanzania to refrain from actions that could disrupt the dispute settlement process and jeopardise Malawi’s historical and legal rights to the entirety of Lake Malawi.

The Tanzania Port Authority (TPA) has already inked a $31.8 million construction deal with China’s Xiamen Ongoing Construction Group for the port, with a projected completion timeline of 24 months.

The unresolved boundary issue between the two nations has persisted for over a decade, with mediation efforts failing to yield conclusive results.

Malawi contends that the boundary should follow the shoreline of Lake Malawi, as stipulated in Article 1(2) of the 1890 Anglo-German Treaty.

The land boundary between Malawi and Tanzania was initially established in 1890 as the edges of the African spheres of influence between the United Kingdom and Germany. It extends from the tripoint with Zambia in the north for 190 km before reaching the shores of Lake Malawi/Nyasa. The remainder of the boundary is disputed; Malawi claims approximately 360 km of shoreline boundary, while Tanzania calls for the boundary to extend along the median line of Lake Malawi/Nyasa for approximately 230 km. Conflict over the dispute was mostly dormant between both States’ independence in the 1960s until hydrocarbon exploration in the 2010s. Formal negotiations began in 2012, but due to the current lack of progress of mediation, there are discussions of sending the dispute to the International Court of Justice for adjudication.

Conversely, Tanzania maintains that the boundary is the median line of the lake, based on the principle of customary international law.

The tension escalated in 2011 when Tanzania took exception to the Malawian government’s award of four oil & gas exploration licences in the eastern shoreline of the Lake that Tanzania regards to be within its sovereign jurisdiction. The potential for lucrative revenue streams to be generated from the exploitation of oil & gas resources in this region has further encouraged the dispute.

The central question to be determined is whether Tanzania or Malawi exercise sovereignty over the eastern half of the northern part of the Lake separating Tanzania and Malawi.

From a legal perspective it appears that Malawi has a legitimate right in asserting its sovereignty along the Lake’s eastern shoreline. The border between Malawi and Tanzania was initially demarcated by colonial powers, Britain and Germany, in terms of the Heligoland Treaty of 1890.

By virtue of this Treaty, customary international law dictates that the default legal position is that the border of Malawi runs along the north-eastern shoreline of the Lake and is, in its entirety, under the sovereign control of Malawi. 

From a South African Development Community (SADC) dispute resolution perspective the former presidents of Botswana and Mozambique have been appointed as mediators to resolve the border dispute. In the event that a mediated settlement is not achieved, Malawi or Tanzania could resolve the dispute by international arbitration. Both Malawi and Tanzania are parties to the Statute of the International Court of Justice (ICJ Statute) annexed to the Charter of the United Nations. Article 36 of the ICJ Statute allows states, without first exhausting diplomatic negotiations to refer, among others, cases involving treaty interpretation to the International Court of Justice (ICJ) for arbitration. Tanzania may, however, view any ICJ arbitration as a serious threat, as an arbitral award by the ICJ will extinguish any claim Tanzania has to the Lake. This will most probably encourage Tanzania to rather seek a political solution to the dispute, having regard to the economic benefit flowing from the natural resources (minerals, petroleum, fisheries and so on) of the Lake.If a political settlement results in the boundary of the Lake being amended the sovereignty of Malawi in exercising regulatory control over the exploration blocks (specifically blocks two and three) will be extinguished. By virtue of that it means that the right of the exploration licences holders would be extinguished or limited, making the commercial exploitation of the blocks impossible or uneconomical as Tanzanian law will apply to the awarding and exploitation of oil & gas resources within its territory.