ngoshwe
JF-Expert Member
- Mar 31, 2009
- 4,131
- 937
This is part of the observation by some learned members of TLS on the border Dispute between Tanzania and Malawi as posted via members' emails . Observations and comments are invited
.-------
Dear Colleagues,
As World has been discussing the border dispute between Tanzania and Malawi
our curiosity was sparked with discussions with Mr. Everard O'Donnell as we
whole heartedly appreciate his thoughts and comments.
The relevance of the Versailles Treaty to Tanzania's case is not even the
late Professor Ian Brownlie discovered it and he knew more about the dispute
than anyone else. The relevant Article was hidden away in an obscure part of
the Treaty and the much-quoted and referred Anglo-German Agreement of 1890
was, in fact, abrogated by the British in the Treaty of Versailles, Article
289 as of July 10, 1920, nearly half a century before the days of
independence.
We recite the Article for ease of reference:
"ARTICLE 289.
Each of the Allied or Associated Powers, being guided by the general
principles or special provisions of the present Treaty, shall notify to
Germany the bilateral treaties or conventions which such Allied or
Associated Power wishes to revive with Germany.
The notification referred to in the present Article shall be made either
directly or through the intermediary of another Power. Receipt thereof shall
be acknowledged in writing by Germany. The date of the revival shall be that
of the notification.
The Allied and Associated Powers undertake among themselves not to revive
with Germany any conventions or treaties which are not in accordance with
the terms of the present Treaty.
The notification shall mention any provisions of the said conventions and
treaties which, not being in accordance with the terms of the present
Treaty, shall not be considered as revived.
In case of any difference of opinion, the League of Nations will be called
on to decide.
A period of six months from the coming into force of the present Treaty is
allowed to the Allied and Associated Powers within which to make the
notification.
Only those bilateral treaties and conventions which have been the subject of
such a notification shall be revived between the Allied and Associated
Powers and Germany; all the others are and shall remain abrogated.
The above regulations apply to all bilateral treaties or conventions
existing between all the Allied and Associated Powers signatories to the
present Treaty and Germany, even if the said Allied and Associated Powers
have not been in a state of war with Germany."
The OAU colonial boundary adoption that is the second line of the Malawian
case had the wording to the effect that colonial boundaries in effect at the
time of independence would be adhered to.
The response of the Malawians will be that the British Orders in Council
during the mandate used the old boundaries but those of course, were
unilateral acts - the unusual feature of the mandate will make any
unilateral act of the mandatory power unlikely to affect the International
Law position which would continue to be governed by the Beagle Channel
principle said in that case to be 'overriding'.
Additionally, the Germans before the abrogation of the Treaty administered
three (3) islands in the lake and ran armed forces on the lake and fortified
riparian settlements- facts on the ground which in the absence of a treaty
in 1920 will make the assumption of a riparian boundary of little merit.
We have attempted to be brief nonetheless we are working on a much detailed
paper that will be made available in due course.
Your comments and critique is much appreciated.
Yours Sincerely
Meinrad D'Souza- Advocate
.-------
Dear Colleagues,
As World has been discussing the border dispute between Tanzania and Malawi
our curiosity was sparked with discussions with Mr. Everard O'Donnell as we
whole heartedly appreciate his thoughts and comments.
The relevance of the Versailles Treaty to Tanzania's case is not even the
late Professor Ian Brownlie discovered it and he knew more about the dispute
than anyone else. The relevant Article was hidden away in an obscure part of
the Treaty and the much-quoted and referred Anglo-German Agreement of 1890
was, in fact, abrogated by the British in the Treaty of Versailles, Article
289 as of July 10, 1920, nearly half a century before the days of
independence.
We recite the Article for ease of reference:
"ARTICLE 289.
Each of the Allied or Associated Powers, being guided by the general
principles or special provisions of the present Treaty, shall notify to
Germany the bilateral treaties or conventions which such Allied or
Associated Power wishes to revive with Germany.
The notification referred to in the present Article shall be made either
directly or through the intermediary of another Power. Receipt thereof shall
be acknowledged in writing by Germany. The date of the revival shall be that
of the notification.
The Allied and Associated Powers undertake among themselves not to revive
with Germany any conventions or treaties which are not in accordance with
the terms of the present Treaty.
The notification shall mention any provisions of the said conventions and
treaties which, not being in accordance with the terms of the present
Treaty, shall not be considered as revived.
In case of any difference of opinion, the League of Nations will be called
on to decide.
A period of six months from the coming into force of the present Treaty is
allowed to the Allied and Associated Powers within which to make the
notification.
Only those bilateral treaties and conventions which have been the subject of
such a notification shall be revived between the Allied and Associated
Powers and Germany; all the others are and shall remain abrogated.
The above regulations apply to all bilateral treaties or conventions
existing between all the Allied and Associated Powers signatories to the
present Treaty and Germany, even if the said Allied and Associated Powers
have not been in a state of war with Germany."
The OAU colonial boundary adoption that is the second line of the Malawian
case had the wording to the effect that colonial boundaries in effect at the
time of independence would be adhered to.
The response of the Malawians will be that the British Orders in Council
during the mandate used the old boundaries but those of course, were
unilateral acts - the unusual feature of the mandate will make any
unilateral act of the mandatory power unlikely to affect the International
Law position which would continue to be governed by the Beagle Channel
principle said in that case to be 'overriding'.
Additionally, the Germans before the abrogation of the Treaty administered
three (3) islands in the lake and ran armed forces on the lake and fortified
riparian settlements- facts on the ground which in the absence of a treaty
in 1920 will make the assumption of a riparian boundary of little merit.
We have attempted to be brief nonetheless we are working on a much detailed
paper that will be made available in due course.
Your comments and critique is much appreciated.
Yours Sincerely
Meinrad D'Souza- Advocate