The international legal framework & potential solutions to the Lebanese-israeli southern maritime border dispute
Legal Analysis by Mounia El Khawand, Staff Writer
July 9th, 2020
The year 1948 marked a turning point in the history of the world, and would forever change the political dynamics of the Middle East. The proclamation of the occupational state of israel as a sovereign state has triggered a seemingly unending wave of turmoil in the region. Hostilities between israel and its neighbors have been incessant for nearly 70 years already, and, particularly with Lebanon, a bordering state to the North, against whom it has waged several armed conflicts. Even though they remain in a technical state of war, and despite the heavy tensions between israel and the Lebanon-based armed group Hezbollah, the Lebanese-israeli conflict has reached a precarious ceasefire, with large-scale battles and guerrilla combat transforming into minor skirmishes, and diplomatic warfare, with international political forums such as the UN General Assembly serving as battlefield.
Yet, several points of contention remain, particularly ones surrounding the matter of border demarcations. While the United Nations Interim Force in Lebanon (UNIFIL), a peacekeeping mission tasked with patrolling the shared land border with israel in the South of Lebanon under the auspices of the United Nations since the end of the israeli occupation in 2000, has somewhat led to a freezing of the land border issue, another polemic that had been left dormant since 2011 has recently resurfaced. It is the matter of the Lebanese-israeli maritime border conflict, a salient issue under the umbrella of the international law of the sea. Even though clashes of this nature are rather commonplace on the international political scene, this particular one has yet to be resolved. While the geopolitical backdrop against which this conflict will be evaluated is fascinating, this paper will not dwell on matters of hidden agendas, international relations, and state interests, and will focus primarily on the legal aspect of the issue. How can public international law help us understand and address the Lebanese-israeli maritime border dispute?
In order to answer this question, a brief overview of the contention will be presented, followed by an analysis of the various legal measures taken by each party respectively, before concluding with an evaluation of the various dispute settlement mechanisms proposed by public international law and relevant bodies and conventions, in order to determine the best course of action possible.
First, it is important to understand the origins of the matter at hand. In 2007, Lebanon passed an agreement with Cyprus on the delimitation of their Exclusive Economic Zones (EEZ), which, according to international law and to Article 57 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), to which both Lebanon and Cyprus are party, shall not extend further than 200 nautical miles from the baseline.[1] Cyprus ratified the agreement, whereas Lebanon, which was under pressure from Turkey, did not until date. It wasn’t until April of 2009 that Lebanon finished identifying the points delimitating its borders with Cyprus. In 2010, Cyprus then entered into another bilateral agreement with israel regarding their respective maritime borders. However, this new agreement caused an overlap between Lebanon’s EEZ and israel’s in the shape of an 856km2 area. Both Lebanon and israel got their own demarcations approved by their respective cabinets and parliaments, before submitting them in writing to the UN, in accordance with international law and UNCLOS. For instance, on August 17, 2011, Lebanon passed Law no. 163 on the Delineation and Declaration of the Maritime Zones of the Lebanese Republic, which follows the zones delineated by UNCLOS.[2] israel, conversely, is not party to the UNCLOS, which means that this convention is not legally binding for israel, according to Article 34 of the 1969 Vienna Convention on the Law of Treaties.[3] However, the practice of the delimitation of EEZs has become a practice of customary international law, making it binding on all states, including israel.[4]
How can we explain this 856km2 overlap?
The fact that Lebanon did not ratify its agreement with Cyprus and that the points it later submitted to the UN did not align with it gave israeli Prime Minister Benjamin Netanyahu grounds to claim, in July 2010, that “the outline that Lebanon submitted to the UN (…) conflicts with the line that we have agreed upon with Cyprus and – what is more significant in my eyes – it conflicts with the line that Lebanon itself agreed upon with Cyprus in 2007.”[5] Lebanon, however, rejected the Cypriot-israeli agreement, by claiming that Cyprus had violated Article 1-d of its agreement with Lebanon, which states that: “At the request of any of the two parties, any further improvement on the positional accuracy of the median line will be agreed upon by the two parties using the same principles, when more accurate data are available.”[6]Cyprus retaliated by claiming that it was under no legal obligation to consult with Lebanon, since the latter had failed to ratify the agreement. Cyprus further explained that the issue was now in Lebanon and israel’s hands. The main problem came from the fact that all the steps taken by Lebanon, and, similarly, by israel, are, in the eyes of public international law, unilateral steps, and are thus non-binding to others, unless an agreement is reached between the two states.[7] Even a bilateral agreement between two states would not be opposable to a third party.[8]
Lebanon expressed its protests through two formal letters addressed to the UN Secretary-General. In the letter dated September 3, 2011, the Lebanese Minister of Foreign Affairs and Emigrants writes: “It is clear from the coordinates deposited by israel that point 31 flagrantly violates the principles and rules of international law and constitutes an assault on Lebanese sovereignty. That point is north of the internationally recognized land borders of Lebanon that are set forth in the Paulet-Newcombe agreement and the Armistice Agreement signed on 23 March 1949.”[9]
The case of Lebanon and israel’s maritime border dispute is particularly complex, since it is coupled with a land border dispute as well, which would strongly affect the maritime contention. Famously, in its 1969 judgement on the North Sea continental shelf case, the International Court of Justice (ICJ) stated that “the land dominates the sea.”[10] This principle has since been reiterated in several judgements, including on the case of Nicaragua v. Colombia, of November 19, 2012.[11] This is important since the principle of the prolongation of natural land borders seawards has been used in the settlement of several disputes, including that of Tunisia v. Libya.[12] For this reason, a crucial demand of the Lebanese government is that both the land and sea borders be delimitated simultaneously, under the supervision of the UN, says Lebanese Parliament Speaker Nabih Berri.[13]
The issue faded into the background since then, especially with the emergence of the Trump administration, which had more pressing matters to tend to. However, it resurfaced in 2019, when Lebanon tasked a consortium of Eni, Total, and Novatek – Italian, French, and Russian companies respectively – with the country’s first offshore energy exploration expedition in two maritime regions, Blocks 4 and 9, the latter of which contains disputed waters with israel.[14]
A map shows the offshore block 9, center, which Israel claims, at the Energy ministry, in Beirut, Lebanon, Thursday, Feb. 1, 2018. Credits: AP Photo/Hussein Malla
As stated previously, israel is not party to the UNCLOS. As such, it is under no legal obligation to abide by any dispute settlement mechanism outlined in the convention. Further, Lebanon does not recognize israel as a sovereign state, and the two countries remain technically at war. Bilateral talks are thus entirely out of the question. However, under Chapter VI of the United Nations Charter, by which both Lebanon and israel are bound, countries are obligated to settle their disputes in a peaceful manner of their choosing. Article 33 of the UN Charter stipulates that: “the parties to any dispute […] shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”[15] This obligation of pursuing peaceful settlement of disputes is also enshrined within Article 2(3) of Chapter I of the Charter, with Article 2(2) highlighting the importance of good faith in upholding the principles of the Charter.[16] Negotiations being ruled out, mediation appeared as the most viable solution, at least at the time.
Mediation operates in a similar spirit as negotiation, with the involvement of a third party to allow communication. The role fell to the United States. For the better part of a decade, four US envoys (Frederic Hof, Amos Hochstein, David Satterfield, and David Schenker) have tried, and failed, to reach an agreeable solution. Several plans to divide the disputed area with Lebanon receiving the majority share, such as the Hof Plan, were rejected by the Lebanese government.[17] Lebanon asserted its desire for the UN to act as an “honest arbiter,” despite American and israeli reluctance.[18] The choice of the US as mediator is interesting. On the one hand, both Lebanon and the UN believe that Washington is the only actor capable of swaying israel.[19] On the other, Lebanon is wary of the US’ position, considering its views on Hezbollah, and undeniable positive bilateral relation with israel.[20] Lebanon’s skepticism was only exacerbated after the US recognized israel’s control over the Golan Heights. Arab countries unanimously rejected this claim, and accused the Trump administration of showing unfair favoritism towards israel.[21]
Proper mediation requires for the third party to be unbiased. Another possible mediator could be France, considering its key stakes, with Total’s majority involvement in the offshore energy exploitation endeavors.[22] Italy and Russia, the home countries of the other companies involved in the consortium, would also benefit from seeing this matter resolved quickly, as would the European Union as a bloc, in the light of their new energy policies, and their desire to diversify their sources of importation.[23] In 2019, when addressing the 74th Session of the General Assembly, Lebanese President Michel Aoun reiterated his commitment to demarcate the maritime borders under the supervision of the UN, and welcomed any contribution in this regard.[24]
H.E. Lebanese President Michel Aoun standing in the General Assembly of the United Nations in the headquarters in New York credits: UN Photo
Yet, ten years of mediation have done little to solve the issue, so perhaps it would be wise to consider other possible peaceful routes for dispute settlements. Conciliation takes mediation a step further. The third party is to play a more active role in dispute settlement by proposing terms and solutions that the parties could be agreeable to. In fact, by presenting some solutions, such as the division of the disputed zone, the US played the role of conciliator. This still amounted to nothing. Lebanon refused any plan that involved the division of the disputed territory.
The UN Charter also suggests the use of an enquiry, which, being primarily a fact-finding mission, would be essential to any mechanism chosen, but would not resolve the issue on its own. Perhaps the most promising proposition in the Charter is the use of ad hoc arbitration. It would provide a final judgement regarding the dispute. Since it usually includes a smaller number of members than the ICJ and is summoned specifically to deal with this case, it would be far more efficient. It also allows both parties to appoint an arbitrator each, and allows them to agree on the procedures to be followed, as well as other matters. However, arbitration is not without its drawbacks. Indeed, procedures will have to be drawn from scratch, decisions will not be based on prior judgements made by this body, since there were none, costs must be borne by the parties, and, should confusion or disagreements arise with regards to implementation, it would be difficult to consult the ad hoc tribunal on the matter.[25]
Given that it would at least provide a final say on the matter, it seems like a viable option. However, with a history of implementation issue being prevalent in the region, measures will have to be defined in order to ensure compliance on both sides.
Another Charter-listed option would be the involvement of the Security Council. However, it is to be treated carefully. While the situation has the potential to degenerate, the region is already suffering from the intervention of foreign powers. Besides, the P-5’s veto would likely nip any burgeoning solution in the bud. With the Syrian Civil war still unfolding, it seems nearly impossible for the permanent members to reach any accord on an issue in the MENA region. Several operative clauses of the unanimously adopted UNSC Resolution 1701, which put an end to the 2006 Lebanese-israeli war, have yet to be implemented. However, the document could strengthen Lebanon’s legal position, since clause no. 10 allows for the Secretary-General of the UN to participate in the demarcation of the “uncertain” Lebanese borders.[26]
Beyond the UN Charter, other conventions and judicial tribunals and courts are to be considered.
The mechanisms and obligations proposed by UNCLOS and the International Tribunal on the Law of the Sea (ITLOS) are somewhat irrelevant, since israel is not a party to the convention. However, it is to note that israel did allude to the regulations set forth by UNCLOS in the preamble of its agreement with Cyprus. This implies that israel recognizes those provisions to be binding as part of customary international law.[27] While many states have chosen to resolve their issues by using the method of the equidistant line proposed by the UNCLOS, it is not a binding rule of customary international law, and many have opted for different methods.[28] Besides, the main issue doesn’t stem solely from a disagreement on the angle of prolongation seawards to determine the maritime border, but rather one the point from which it should first be drawn.[29]While the UNCLOS does pave the way for potential dispute settlement mechanisms, it is not legally binding on israel. However, drawing lessons from prior contentions settled by UNCLOS regulations would certainly be beneficial.
The ICJ, the senior legal body in public international law, with its expertise on the matter, may seem like another interesting idea. However, it is rather impractical, since it requires a great logistical hassle, and both parties have to consent to its jurisdiction, which seems rather unlikely. That would also raise an issue considering that Lebanon does not recognize israel as a state, since taking the case up with the ICJ might be perceived as a de facto and de jure recognition of israel. Consequently, resolving the situation by order of a court or tribunal should account for a provision that clearly stipulates that such actions are in no way an act of recognition of israel’s sovereignty on Lebanon’s behalf.[30] Moreover, Lebanon fears that israel would condition submitting the maritime border conflict to the ICJ on having the Court settle all of their other border disputes[31], including the matter of the Shebaa Farms, and the southern land border, patrolled by UNIFIL.
Judge Peter Tomka, President of the International Court of Justice, presides over the court case verdict regarding a maritime dispute between Chile and Peru at the ICJ in the Hague, January 27, 2014. Credits: Reuters
As such, a sound strategy for the Lebanese Republic is to consolidate its position by pursuing peaceful routes, reiterating its commitment to bring a just and swift end to the issue, anchoring its arguments in public international law and other relevant documents, and passing domestic legislations consistent with the principles enshrined within the UN Charter and the UNCLOS. If the issue does come to a trial before an international tribunal, be it the ICJ, the ITLOS, or ad hoc arbitration, Lebanon’s stance would only be strengthened by the aforementioned measures, and allow it to argue its case with the backdrop of demonstrated respect for public international law and its principles. Resolving the border issues would only hasten offshore energy exploitation, and hence usher in a new era of development to the Easter Mediterranean, if only countries would uphold their UN Charter obligations in good faith, and maintain decorum.
Technological advancements offer a new perspective and more accurate techniques to delimit natural borders, showing once more that the scientific and the legal operate hand in hand. Indeed, in his research report, the CEO of Energy and Environment Holding, Qatar reminds us that UNCLOS and other treaties have already shone the light on the path to take to ensure just and equitable solutions. Guidance can be found in prior treaties, precedents, course cases, and arbitrary decisions, all of which have contributed to a drastic decrease in statutory ambiguities. In addition, modern mapping systems and technologies, legal and scientific tools all play a role in predicting likely outcomes. He says: “The tools are all in place. The only missing ingredients are the collective wisdom to eschew zero-sum games, the collective commitment to resolve all boundary disputes peacefully, and the collective good faith to honor the outcomes.” As he puts it, “the payoff for success would be too great, and the price of failure, too high.”[32]
Indeed, both mediation and conciliation have failed to yield any tangible results, and the intervention of the ICJ could set a political and diplomatic precedent that the parties, most particularly Lebanon, would rather avoid. The best way to move forward, is to work on domestic legislation all the while pursuing dispute settlement measures outlined in Chapter VI of the UN Charter, the most promising of which, in my opinion, is arbitration. However, COVID-19 pandemic has likely delayed the exploration and drilling activities planned for 2020. Besides, where once Lebanon could have used its newfound abundance of fossil fuels to mitigate the damage caused by its economic downturn, the world now finds itself facing an unprecedented surplus of oil and other hydrocarbons, with prices plummeting and even reaching the negatives for a time.[35] While the presence of offshore resources is not a relevant circumstance recognized by international bodies in the delimitation of maritime boundaries,[36] it was certainly a powerful incentive for several third-party players as well as the two adversaries. New circumstances in international relations may hence hamper the efforts undertaken to bring this issue to an end.
[1] United Nations General Assembly. (December, 1982). United Nations Convention on the Law of the Sea. UN Archives. Retrieved from: https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
[2] Gowlland-Debbas, V. (November, 2012). The legal framework of Lebanon’s maritime boundaries: The exclusive economic zone and offshore hydrocarbon sources. ASDEAM. Retrieved from: http://lebcsr.org/wp-content/uploads/2017/12/LegalFramwork.pdf
[3] United Nations. (May 23, 1969). Vienna convention on the law of treaties. UN Treaties. Retrieved from: https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf
[4] Gowlland-Debbas, V. (November, 2012). The legal framework of Lebanon’s maritime boundaries: The exclusive economic zone and offshore hydrocarbon sources. ASDEAM. Retrieved from: http://lebcsr.org/wp-content/uploads/2017/12/LegalFramwork.pdf
[5] Middle East Strategic Project. (May, 2018). The maritime border dispute between Lebanon and Israel explained. Executive Magazine. Retrieved from: https://www.mesp.me/2018/03/05/maritime-border-dispute-lebanon-israel-explained/
[6] MEES. (September 28, 2012). Cyprus-Lebanon, Cyprus-Israel offshore delimitation. MEES, 55(40). Retrieved from: https://www.mees.com/2012/9/28/op-ed-documents/cyprus-lebanon-cyprus-israel-offshore-delimitation/f994d750-6d1a-11e7-9675-d5a0b0510107
[7] Dupont, P-E. (January, 2019). Lebanon’s Southern maritime border dispute: Legal issues, challenges, and the way forward. Issam Fares Institute for Public Policy and International Affairs, American University of Beirut.Retrieved from: https://www.aub.edu.lb/ifi/Documents/publications/working_papers/2018-2019/20190212_lebanon_southern_maritime_border_dispute.pdf
[8] Baroudi, R. (March, 2020). Unlocking peace and prosperity: How to resolve maritime border disputes in the Eastern Mediterranean Sea. Issam Fares Institute for Public Policy and International Affairs, American University of Beirut. Retrieved from: https://www.aub.edu.lb/ifi/Documents/publications/research_reports/2019-2020/20200330_unlocking_peace_and_prosperity.pdf
[9] Mansour, A. (September 3, 2011). Letter to the UN Secretary-General. UN Lebanon. Retrieved from: https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/communications/lbn_re_isr__listofcoordinates_e.pdf
[10] ICJ. (February 20, 1969). North Sea Continental Shelf Cases. Reports of Judgements. Retrieved from: https://www.icj-cij.org/files/case-related/52/052-19690220-JUD-01-00-EN.pdf
[11] ICJ. (November 19, 2012). Nicaragua v. Colombia. Reports of Judgements. Retrieved from: https://www.icj-cij.org/files/case-related/124/124-20121119-JUD-01-00-EN.pdf
[12] Dupont, P-E. (January, 2019). Lebanon’s Southern maritime border dispute: Legal issues, challenges, and the way forward. Issam Fares Institute for Public Policy and International Affairs, American University of Beirut.Retrieved from: https://www.aub.edu.lb/ifi/Documents/publications/working_papers/2018-2019/20190212_lebanon_southern_maritime_border_dispute.pdf
[13] The Daily Star. (January, 2020). Berri: Lebanon waiting for border demand from U.S. The Daily Star. Retrieved from: https://www.dailystar.com.lb/News/Lebanon-News/2020/Jan-13/499146-berri-lebanon-waiting-for-border-demand-from-us.ashx
[14] Barrington, L. (September, 2019). Lebanon hopes U.S. will resume mediation in border disputes with Israel. Reuters. Retrieved from: https://www.reuters.com/article/us-lebanon-security-israel/lebanon-hopes-u-s-will-resume-mediation-in-border-disputes-with-israel-idUSKCN1VV1KA
[15] United Nations. (1945). Chapter VI: Pacific settlement of disputes. United Nations Charter. Retrieved from: https://www.un.org/en/sections/un-charter/chapter-vi/index.html
[16] United Nations. (1945). Chapter I: Purposes and principles. United Nations Charter. Retrieved from: https://www.un.org/en/sections/un-charter/chapter-i/index.html
[17] Middle East Strategic Project. (May, 2018). The maritime border dispute between Lebanon and Israel explained. Executive Magazine. Retrieved from: https://www.mesp.me/2018/03/05/maritime-border-dispute-lebanon-israel-explained/
[18] Vohra, A. (June, 2019). Lebanon agrees to talks with Israel over maritime dispute. ALJAZEERA. Retrieved from: https://www.aljazeera.com/news/2019/05/lebanon-agrees-talks-israel-maritime-dispute-190530132656645.html
[19] Haboush, J. (October, 2019). Resolving the Lebanese-Israeli border dispute: What’s in it for Washington? Middle East Institute. Retrieved from: https://www.mei.edu/publications/resolving-lebanese-israeli-border-dispute-whats-it-washington
[20] Pedro, L. (December, 2019). Israel, Lebanon, and failed natural gas negotiations. Foreign Policy Research Institute. Retrieved from: https://www.fpri.org/article/2019/12/israel-lebanon-and-failed-natural-gas-negotiations/
[21] The Associated Press. (April, 2019). Lebanon fears for disputed territory with Israel after Trump’s Golan recognition. Haaretz. Retrieved from: https://www.haaretz.com/israel-news/lebanon-fears-for-disputed-territory-with-israel-after-trump-s-golan-recognition-1.7106647
[22] Dupont, P-E. (January, 2019). Lebanon’s Southern maritime border dispute: Legal issues, challenges, and the way forward. Issam Fares Institute for Public Policy and International Affairs, American University of Beirut.Retrieved from: https://www.aub.edu.lb/ifi/Documents/publications/working_papers/2018-2019/20190212_lebanon_southern_maritime_border_dispute.pdf
[23] Baroudi, R. (March, 2018). Lebanon-Israel maritime dispute: Rules of (diplomatic) engagement. An-Nahar. Retrieved from: https://en.annahar.com/article/776079-lebanonisrael-maritime-disputes-rules-of-diplomatic-engagement
[24] United Nations. (September, 2019). Lebanon - President Addresses General Debate, 74th Session. YouTube. Retrieved from: https://www.youtube.com/watch?v=lGgthnWRrrE
[25] Dupont, P-E. (January, 2019). Lebanon’s Southern maritime border dispute: Legal issues, challenges, and the way forward. Issam Fares Institute for Public Policy and International Affairs, American University of Beirut.Retrieved from: https://www.aub.edu.lb/ifi/Documents/publications/working_papers/2018-2019/20190212_lebanon_southern_maritime_border_dispute.pdf
[26] Security Council. (August 11, 2006). Resolution 1701. UN Meetings Coverage and Press Releases. Retrieved from: https://www.un.org/press/en/2006/sc8808.doc.htm
[27] Gowlland-Debbas, V. (November, 2012). The legal framework of Lebanon’s maritime boundaries: The exclusive economic zone and offshore hydrocarbon sources. ASDEAM. Retrieved from: http://lebcsr.org/wp-content/uploads/2017/12/LegalFramwork.pdf
[28] ICJ. (February 24, 1982). Case concerning the continental shelf. Reports of Judgements. Retrieved from: https://www.icj-cij.org/files/case-related/63/063-19820224-JUD-01-00-EN.pdf
[29] Baroudi, R. (March, 2018). Lebanon-Israel maritime dispute: Rules of (diplomatic) engagement. An-Nahar. Retrieved from: https://en.annahar.com/article/776079-lebanonisrael-maritime-disputes-rules-of-diplomatic-engagement
[30] Dupont, P-E. (January, 2019). Lebanon’s Southern maritime border dispute: Legal issues, challenges, and the way forward. Issam Fares Institute for Public Policy and International Affairs, American University of Beirut.Retrieved from: https://www.aub.edu.lb/ifi/Documents/publications/working_papers/2018-2019/20190212_lebanon_southern_maritime_border_dispute.pdf
[31] Baroudi, R. (March, 2018). Lebanon-Israel maritime dispute: Rules of (diplomatic) engagement. An-Nahar. Retrieved from: https://en.annahar.com/article/776079-lebanonisrael-maritime-disputes-rules-of-diplomatic-engagement
[32] Baroudi, R. (March, 2020). Unlocking peace and prosperity: How to resolve maritime border disputes in the Eastern Mediterranean Sea. Issam Fares Institute for Public Policy and International Affairs, American University of Beirut. Retrieved from: https://www.aub.edu.lb/ifi/Documents/publications/research_reports/2019-2020/20200330_unlocking_peace_and_prosperity.pdf
[33] Baroudi, R. (March, 2018). Lebanon-Israel maritime dispute: Rules of (diplomatic) engagement. An-Nahar. Retrieved from: https://en.annahar.com/article/776079-lebanonisrael-maritime-disputes-rules-of-diplomatic-engagement
[34] Dupont, P-E. (January, 2019). Lebanon’s Southern maritime border dispute: Legal issues, challenges, and the way forward. Issam Fares Institute for Public Policy and International Affairs, American University of Beirut.Retrieved from: https://www.aub.edu.lb/ifi/Documents/publications/working_papers/2018-2019/20190212_lebanon_southern_maritime_border_dispute.pdf
[35] Bajaj, V. (April 22, 2020). What negative oil prices mean and how the impact could last. The New York Times. Retrieved from: https://www.nytimes.com/article/negative-oil-prices-facts-history.html
[36] ICJ. (February 24, 1982). Case concerning the continental shelf. Reports of Judgements. Retrieved from: https://www.icj-cij.org/files/case-related/63/063-19820224-JUD-01-00-EN.pdf