Israel's Security Cabinet is set to vote on a maritime agreement with Lebanon, but with the elections coming up, can an outgoing government sign such a deal and does it have to be ratified by the Knesset or by referendum?
What does the maritime border agreement say?
Israel and Lebanon have been negotiating with one another for more than a decade, with the help of international mediation, seeking agreement on several issues relating to their joint maritime border and the division of rights and obligations between them in the areas of the Mediterranean Sea adjacent to their coasts. The two sides have announced in recent days that they accept the compromise put forward by the American mediator, which includes a formal agreement on parts of maritime border between their respective “territorial waters”, as well as delineation of the economic areas that belong to the two states beyond their territorial waters. In these latter areas, states do not have sovereign title, but do have specific sovereign rights to exploit the natural resources which are found there (or to award rights of exploitation to a third party).
It appears that the agreement on the territorial waters follows Israel’s position with respect to the first 3 nautical miles from the coast and follows the Lebanese position on the remainder of the area (for 9 additional nautical miles). At the same time, the agreement on delimitation of the economic areas follows Lebanon’s stance, but, in return for compromising on these economic borders, Israel will receive a certain percentage of Lebanon’s incomes from natural gas extraction in its economic area (an arrangement that will be implemented via the French company to which Lebanon has awarded license to produce natural gas from the relevant area).
Does a caretaker government have the authority to agree to a deal of this kind?
While Israeli law does not formally differentiate between outgoing governments (before elections are held), transition governments (after elections are held, but before a new government is formed) and “permanent” governments that enjoy majority in the Knesset, judicial precedent requires governments that do not have a Knesset majority to act with caution and restraint, and to refrain from taking significant steps that would tie the hands of future governments – especially during election periods. There is one prominent exception to this rule—that is, when there is an essential and urgent public need to take such steps. In the present case, it can be argued that the fear of an outbreak of a military conflict on Israel’s northern border over the beginning of natural gas production from the Karish offshore gas field meets the definition of an “essential public need.” It has also been claimed that the political circumstances in Lebanon created a unique “window of opportunity” to conclude the agreement now.
Does the agreement require approval from the Knesset?
Israeli law does not generally require Knesset approval before international agreements are signed and ratified. However, the Knesset Rules of Procedure and the Government Rules of Procedure require that international agreements be brought to the Knesset two weeks before being finally approved by the government, though this requirement can be overridden for reasons of confidentiality and/or urgency. It is customary for important foreign policy agreements—such as peace agreements or the Abraham Accords—to be submitted for the approval of the Knesset before or after they are signed, but it is not clear whether this constitutes a legal requirement, and if so, to what extent it applies. It would appear prima facie that an agreement on the delineation of maritime borders, the main relevance of which is economic, is substantially different from important foreign policy agreements that have been submitted for Knesset approval in the past (previous maritime delimitation agreements with Cyprus and Jordan were not brought to the Knesset for approval).
Does the agreement need to be ratified by a referendum?
The Kohelet Policy Forum recently petitioned the Supreme Court to rule that the maritime border agreement with Lebanon must be put to a referendum. The petition is based on the argument that Israel’s waters have the same legal status as its territories on land, regarding to which the Basic Law: Referendum requires that a national referendum be held in order to ratify any arrangement in which Israel hands over sovereign territory to another country (or that such an arrangement is approved by a special majority of 80 Knesset members).
To the extent that the agreement in question relates to economic control over specific waters, which do not fall under Israel’s sovereignty and to which Israeli law, legal jurisdiction and administration do not therefore apply, then this petition would have no real basis. However, although the agreement includes changes to the maritime borders between states (that is, it alters the area of territorial waters under Israeli sovereignty) —then the petition’s arguments will need to be assessed more carefully.
On the one hand, it could be argued that handing over Israel’s sovereign waters has the same legal standing as handing over sovereign territories on land. On the other, it could be claimed that the legislator did not intend to include minor alterations to the maritime area under Israeli sovereignty under the terms of this Basic Law. The latter was originally designed to make it more difficult to relinquish territories such as Jerusalem or the Golan Heights. Furthermore, the agreement in question aims to delineate maritime borders that remain contested, rather than to hand over territory to another sovereign state.