Oil Under Troubled Waters?: Some Legal Aspects of the Boundary Dispute Between Malawi and Tanzania Over Lake Malawi

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

Who is a Refugee?: Twenty-Five years of Domestic Implementation and Judicial Interpretation of the 1969 OAU and 1951 UN Refugee Conventions in Post-Apartheid South Africa

As a party to the UN Refugee Convention and the OAU Refugee Convention, South Africa is obligated to apply international refugee law when addressing the protection needs of asylum seekers in the country. The Refugees Act, 1988 encapsulates the cardinal principles of the two conventions. This essay discusses how government officials and judges have interpreted and applied these principles in asylum application cases. These cases demonstrate that officials are either not always fully conversant with the legal obligations, incumbent upon the government arising from both international law and domestic law or purposefully ignore them. For the most part, officials tend to treat asylum seekers preemptively as economic migrants rather than bona fide refugees entitled to proper scrutiny under the criteria set pt in the refugee conventions. This approach has resulted in gaps between legal protection and practical protection of refugees in South Africa and has on several occasions been criticized and rejected by courts, including the Constitutional Court of South Africa

Reassessing Aspects of the Contribution of African States to the Development of International Law Through African Regional Multilateral Treaties

For decades, debates about Africa’s contribution to the development of international law have been dominated by two opposing schools of thought. First, that European colonial powers deliberately erased Africa and Africans from the history of the creation and use of international law. Second, that, on the contrary, over the last six decades (since the emergence of the newly independent African states in the late 1950s and early 1960s), Africa has contributed to the making of international law and has not been merely a passive recipient of a Eurocentric international law. This article underscores the role of the postcolonial periphery in the scheme of modern international law by highlighting specific examples of African states’ contributions to international legal norms through multilateral treatymaking. To that end, this article assesses a number of African Union and Organisation of African Unity treaties for their content, relevance, and impact. It concludes that postcolonial African states have been active participants in developing new rules of international law—and strengthening existing ones—through the adoption of path-breaking conventions that work to either (1) establish African commitment to new norms with potential global application or (2) supplement existing global (United Nations) instruments with commitments specific to the African context. It also shines a light on the desirability and pertinence of regional diversity in the continuing development and application of international law, and on the changing geographies of international lawmaking