Date: 14/10/2020 Time: 21:29
Authored by Amb. Alan Baker via jcpa.org
- After a rift of over 30 years since any meaningful negotiations took place between Lebanon and Israel, the two countries have now agreed to conduct negotiations on their mutual maritime border, with the U.S. as mediator and facilitator.
- The most important factor in pushing both states towards negotiating is the potential economic benefits to Lebanon and Israel of cooperation in the extraction and marketing of natural gas. According to an estimate of the U.S. Geological Survey in 2010, unexplored potential reserves in the Levant Basin amount to 1.7 billion barrels of recoverable oil and 122 trillion cubic feet of recoverable gas – the world’s largest gas finds in decades.
- However, unlike routine border negotiations between neighboring states at peace with each other, a prevailing atmosphere of hostility, suspicion, lack of trust, and a long history of armed conflict and terror, renders this particular dispute as unique.
- Lebanon’s political leadership have, up to the present, represented the two countries as being in an ongoing state of armed conflict. Yet on May 17, 1983, the two countries agreed to formally end the state of war between them and grant mutual recognition of each country’s sovereignty and territorial integrity. Moreover, in the context of the 1991 Madrid Conference, more than a dozen rounds of bilateral talks were held between Israel and Lebanon in 1991-1993.
- As Amb. Freddy Eytan noted in the Times of Israel (in French) on October 4: “Of course, this is not a peace agreement with the country of the Cedar because Hizbullah refuses any direct contact or compromise with the ‘Zionist enemy.’ [Yet] for the first time, Lebanese leaders such as the Shiite President of the National Assembly, Nabih Berry, no longer use the term ’enemy’ when referring to the State of Israel.”
- “The new negotiations, although limited in time and space, present a de facto ‘recognition’ of the existence of the neighboring Israeli state.”
After a rift of over 30 years since any meaningful negotiations took place between Lebanon and Israel, the two countries have now agreed to return to a negotiating mode and to conduct discussions on their mutual maritime border.
On October 1, 2020, U.S. Secretary of State Pompeo announced the agreement by the two states to a “common framework for maritime discussions,” with a view to negotiations between them to solve a disputed common maritime boundary in the Mediterranean Sea. It was also agreed that the U.S. would participate as mediator and facilitator, and the talks will be held in Naqoura, Lebanon, under the U.N. flag and hosted by the staff from the Office of the U.N. Special Coordinator for Lebanon.2
The negotiations are intended to cover a disputed 330-square miles area (860-square-kilometers) straddling the maritime border area between them in the Eastern Mediterranean, rich with natural-gas fields. Both states claim that the area concerned is within their own respective “exclusive economic zone” and “continental shelf,” theoretical 200-nautical mile zones off their coast within which, pursuant to the 1982 U.N. Convention on the Law of the Sea (UNCLOS), coastal states enjoy exclusive rights to exploit and benefit from natural resources. Such resources include fish, gas and oil, and other mineral deposits in the seabed and body of water adjacent to its coast.3
While Lebanon is a party to UNCLOS, Israel, despite its active involvement in its negotiation and drafting, never actually ratified or acceded to it.4 However, Israel has acknowledged that the provisions of the convention are considered to reflect accepted and customary international sea law, and as such, bind Israel.
On the face of things, the anticipated maritime border negotiation would appear to be a standard and routine method of settling any maritime border dispute between two adjacent, neighboring countries, and many such disputes are still open, especially among the states bordering the South China Sea. Such disputes are generally resolved by reference to the relevant customary and conventional international law rules of delimitation of mutual maritime borders, as set out in the 1982 U.N. Convention on the Law of the Sea, as well as in a long series of precedents established over the years and covered in the jurisprudence of international border tribunals and the International Court of Justice.
However, unlike standard and routine border negotiations between normal, neighboring states at peace with each other, and as in most issues involving the Middle East, a prevailing atmosphere of hostility, suspicion, lack of trust, and a long history of armed conflict and terror, renders this particular dispute, as simple as it may appear to be, as unique.
This is especially the case inasmuch as it involves a process that opens possibilities of peaceful settlement of disputes with potentially wide regional ramifications, and comes on the heels of the Abraham Accords signed at Washington D.C. on September 15, 2020, in which the United Arab Emirates and the Kingdom of Bahrain declared their recognition of Israel’s sovereignty and willingness to enter into normal relations with Israel.
Several factors contribute to this unique aspect:
Potential for Economic Benefits and Cooperation
First and foremost, given the sad history and present realities in the area, the most crucial factor in pushing both states towards a negotiating mode is perhaps the potential economic benefits to Lebanon and Israel, as well as to all states in the area, of cooperation in the extraction and marketing of natural gas and other natural resources.
Clearly, such substantive regional benefits emanating from cooperation and coordination could not materialize in an atmosphere of hostility inherent in any relationship that lacks peaceful civil relations, trust, and bon-voisinage [good neighborliness]. This is all the more evident where international companies involved in investing funds in fuel extraction and production have indicated hesitancy to risk investing financial resources in an area of potential conflict and political and military instability.
By the same token, wider benefits of cooperation among the regional states involved – Israel, Lebanon, Cyprus, Egypt, and even Syria and Turkey – could accrue from cooperation in furthering regional projects such as gas transportation to Europe and further afield, utilization, management and conservation of living resources such as fishing, joint counter-pollution efforts, and marine environmental monitoring, and of course, tourism connecting the Eastern Mediterranean to Europe.5
A detailed, expert research document regarding Lebanon’s potential for benefiting from seabed gas resources, was published in 2012 by the Geneva-based “Orient Mont-Pelerin Foundation to promote peace and understanding between Europe, the Middle and the Near East through dialogue and knowledge.” Entitled “The Legal Framework of Lebanon’s Maritime Boundaries: The Exclusive Economic Zone and Offshore Hydrocarbon Resources,” the paper reported:
According to an estimate of the U.S. Geological Survey published in March 2010, unexplored potential reserves in the Levant Basin amount to 1.7 billion barrels of recoverable oil and 122 trillion cubic feet of recoverable gas (3,450 billion cubic meters). These represent the world’s largest gas finds in decades.
The discovery of oil and gas in this region offers great hope to Lebanon. Revenue from offshore gas finds, and the shift to natural gas as an independent source of energy would bring numerous benefits to the people of Lebanon: it would make a major contribution to the financing of Lebanon’s high-level public debt, address the dire electricity crisis confronting that country and make it less dependent on foreign sources for its energy needs, and would have a positive impact on the environment, among many other considerations. Since 2004, the World Bank has urged the Lebanese government to shift to natural gas as a source of energy to cut the high cost of electricity production, on the grounds that it would generate huge annual savings as well as avoid damage to the environment and public health. If managed in a responsible manner, oil and gas resources should also create jobs, increase incomes, and raise standards of living. In short, the exploitation of its oil and gas wealth will change the political and economic landscape of the country.6
In light of their geographical proximity as neighbors, the same economic prognosis is no less relevant with respect to Israel.
Given the delicate economic, political, and security interests involved in this anticipated negotiation, and in the hope and assumption that it will indeed be bona fide, it is likely that the parties will seek to compromise on a specific, substantive arrangement that would take into consideration the wider bilateral and regional concerns, assuming that any peaceful arrangement between them will enable ongoing bilateral and regional coordination and cooperation.
Disputed Methods of Border Delineation
An additional but vital factor contributing to the uniqueness of the Lebanon-Israel maritime border issue is a technical, but substantive difference between the two states regarding the method for demarcating their maritime border. Each country seeks to achieve a maximal area of seabed resources, and the concomitant economic benefits therefrom, at the expense of the other. Israel favors plotting the border by means of a simple 90-degree angle adjacent to the land border, while, on the other hand, Lebanon prefers to draw the borderline as a straight continuation of the land border, as indicated in the above diagram.8
In the absence of agreement between adjacent states, the U.N. Convention on the Law of the Sea provides that in situations of overlapping claims in respect of the Continental Shelf or Exclusive Economic Zone between States with “adjacent or opposite coasts,” the delimitation is to be “effected by agreement on the basis of international law … in order to achieve an equitable solution.” In the absence of an agreement, delimitation should take place based on the median line or the equidistance line from the baselines.
Similarly, the convention calls for a conflict to be resolved “on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.”10
In addition to these accepted modes of dispute-settlement by peaceful means of choice by the parties concerned, UNCLOS, in its provisions regarding the territorial sea, also provides a clear geographical and mathematic formula for an exact and accurate delimitation and delineation of the maritime areas between them, taking into account the respective coastlines of each party.
This formula is based on plotting a “median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured.”11
The formula has been adopted in the maritime border disputes between the states surrounding the South China Sea.
Maritime Boundary Disputes in the South China Sea12
In the negotiations on the Sino-Vietnamese Agreement on Maritime Boundary Delimitation in the Gulf of Tonkin, completed in the year 2000, the parties failed at the beginning to reach agreement due to strained relations between them.
As noted in a research paper by Zou Keyuan of the East Asia Institute at the National University of Singapore:
The first two stages were fruitless primarily because the relationship between the two countries was poor. Only after the normalization of bilateral relations in 1991 did the negotiations enter into a productive stage. In 1993, the two sides reached a general agreement on the basic principles to be applied to settling the disputes relating to the land border and the delimitation of the Gulf of Tonkin.
The agreed-upon principles were those of “applying the International Law of the Sea and referring international practices to carry out negotiations on the delimitation of the Tonkin Gulf” and “in line with the principle of equality, taking into consideration all circumstances concerned in the Gulf to reach an equal solution.
On December 25, 2000, the two sides signed the “Agreement on the Delimitation of the Territorial Seas, Exclusive Economic Zones and Continental Shelves in the Beibu Gulf and the Agreement on Fishery Cooperation.”13
Additional disputes presently abound in other areas of the South China Sea between China and its neighbors Vietnam, Taiwan, Malaysia, Brunei, and the Philippines, all entertaining competing claims in the sea. In fact, China claims more than 80% of the South China Sea, approximately 3.5 million square kilometers, based on what it describes as “historical claims.”
However, in a 2016 arbitration award given by the Permanent Court of Arbitration at The Hague, instituted against China by the Philippines, a panel of five experts in maritime law ruled that there was no legal basis to China’s claim to sovereignty over much of the South China Sea. China has consistently refused to honor this ruling.14, 15
Diplomatic Attempts to Resolve the Lebanon-Israel Maritime Border Dispute
Regrettably, Lebanon’s refusal up to now to enter into a direct negotiating mode with Israel has prevented any possibility of resolving the issue by such peaceful means, despite the fact that individual, bilateral maritime border delimitation agreements in the Mediterranean Sea have been signed between Cyprus and Lebanon in 200716 and between Cyprus and Israel dated December 17, 2010,17 and despite a series of attempts to solve the dispute through indirect talks between Israel and Lebanon between 2011-2012.
The dispute has been compounded by a spate of complaints in diplomatic notes forwarded by Lebanon to the U.N. Secretary-General following the signing of Israel’s agreement with Cyprus in 2010.
In its note dated June 20, 2011, Lebanon’s Minister for Foreign Affairs and Emigrants Adnan Mansour complained that:
The Republic of Cyprus and Israel, the occupying Power, signed an agreement in which they delimited their respective exclusive economic zones…18
Clearly, the use of such offensive terminology to describe Israel’s sovereign territory along its northern border with Lebanon, in effect denying the legitimacy of Israel’s existence and presence as a sovereign state, is indicative of the substantive political difficulty that has plagued attempts to resolve what should be, by any definition, a standard maritime border dispute.
The exchange of diplomatic notes regarding the respective claims of the two sides to utilize the seabed continued between 2011-2018.
In its notes to the Secretary-General, Israel reiterated:
…its openness to dialogue and cooperation with the relevant neighboring states regarding the limit of Israel’s Territorial Sea and Exclusive Economic Zone, in accordance with the principles of international maritime law.19
Lebanon also voiced a similar commitment:
…reiterating its commitment to International Law and in particular to the provisions of the United Nations Convention on the Law of the Sea regarding the delimitation of its maritime borders.”20
Political Relationship between Lebanon and Israel
Clearly, the above political issue of the relationship between Lebanon and Israel constitutes a major, additional factor in the uniqueness of any bilateral maritime border negotiation between them.
Many commentators, including those within Lebanon’s political leadership such as the President of the Lebanese National Assembly Nabih Berry, the Minister for Foreign Affairs and Emigrants Adnan Mansour, as well as international media generally, have, up to the present, represented the two countries as being in an ongoing state of armed conflict.
However, the complex history of the relations between the two countries would appear to cast an element of doubt as to whether, indeed, a formal state of war, with all that implies, exists and is relevant.
This complex history includes the following stages in the bilateral interaction between the two countries:
- On May 15, 1948, Lebanon, together with six other Arab League members – Iraq, Syria, Transjordan, Egypt, Saudi Arabia, and Yemen – declared the opening of offensive action against the newly established State of Israel, thereby opening Israel’s War of Independence. This is documented by a detailed declaration sent by the Secretary-General of the Arab League to the U.N. Secretary-General on May 15, 1948.21
- However, following the 1948 war, less than a year later, on March 23, 1949, Lebanon and Israel (as well as Egypt, Jordan, and Syria) entered into a bilateral armistice agreement “with a view to promoting the return of permanent peace” and “as an indispensable step toward the liquidation of armed conflict and the restoration of peace in Palestine.”
Lebanon was, in fact, the first country to sign such an agreement with Israel.22
This agreement determined that “the Armistice Demarcation Line between the two states should follow the international boundary between Lebanon and Palestine.”23
The reference to the “international boundary” referred to a 1923 line agreed between the British and French governments regarding the position and nature of the boundary between the Mandates of Palestine and Iraq, attributed to Great Britain, and the Mandate of Syria and Lebanon, attributed to France. This agreement was known as the “Paulet–Newcombe Agreement.”24
It made no reference to any maritime continuation of the boundary.
- Subsequently, between 1982-3, following armed confrontations between Israeli forces and PLO terror groups functioning from Lebanese territory against Israel, including an Israeli armed incursion into Lebanon to quell terror activity against Israel, direct bilateral negotiations took place between the two countries, in the Lebanese town of Halde and the Israeli town of Herzliya. These negotiations were mediated by the United States.25
On May 17, 1983, these negotiations were successfully concluded with an agreement signed by the parties formally ending the state of war between them and granting mutual recognition of each country’s sovereignty and territorial integrity.26
Regrettably, and due to Syrian pressure, this agreement was never allowed to be ratified by the Lebanese parliament and was formally shelved on March 5, 1984.
- In the context of the 1991 Madrid Conference peace initiative sponsored by U.S. President Bush and the then-USSR President Gorbachev, to which Israel and its neighbors were invited, direct, bilateral negotiations between Israel and its neighbors, including Lebanon, were held in Washington between 1991-3 in Washington D.C.
According to the invitation to the Madrid Conference:
The co-sponsors will chair the conference which will be held at ministerial level. Governments to be invited include Israel, Syria, Lebanon, and Jordan. Palestinians will be invited and attend as part of a joint Jordanian-Palestinian delegation.27
More than a dozen rounds of bilateral talks were held between Israel and Lebanon in the framework of the Washington talks. During these negotiations, a draft of a peace treaty was exchanged between the parties that included all the components of peace, recognition of sovereignty, good neighborly relations, diplomatic relations, security coordination, and normalization. This was facilitated by the fact that that there was no territorial issue between the two parties.28
Despite the friendly and good-neighborly ambiance in the negotiations and the considerable substantive progress made towards peace, Syria, regrettably, again prevented any advance towards a separate peace treaty between Israel and Lebanon.
- On April 26, 1996, following a further bout of military action in Lebanon by Israel in response to terrorist infiltration and the firing of Katyusha rockets from southern Lebanon into Israel by Hizbullah terrorists, an “Israel-Lebanon Ceasefire Understanding” was reached in consultation with Syria, Lebanon, and Israel, with U.S. mediation.
In addition to achieving an end to hostilities, the document stated:
It is recognized that the understanding to bring the current crisis between Lebanon and Israel to an end cannot substitute for a permanent solution. The United States understands the importance of achieving a comprehensive peace in the region.
Toward this end, the United States proposes the resumption of negotiations between Syria and Israel and between Lebanon and Israel at a time to be agreed upon, with the objective of reaching comprehensive peace.29
A further significant factor rendering the upcoming negotiation with Lebanon as unique is the fact that it comes on the heels of the September 15, 2020, “Abraham Accords,” signed in Washington by Israel, the United Arab Emirates, the Kingdom of Bahrain, and U.S. President Trump.30
The signing of these accords, in and of itself, heralds a new era of acceptance, recognition, and developing normalization of relations between Israel and the Arab world, which cannot go unnoticed by Lebanon as it enters into a new, and hopefully more successful negotiation process with Israel on their joint maritime border.
By the same token, this factor cannot go unnoticed by the other Arab and Muslim states in the region that also yearn for a normal, peaceful, regional environment that would enable all the states to benefit from each other and the resources available in the sea and elsewhere.
In light of these factors in the evolvement of relations between Lebanon and Israel, it is undeniable that mutual acknowledgment and recognition have, in fact, taken place between them long after any formal and active instances of armed conflict between the two countries.
As such, while a formal state of peace has yet to be achieved, one may nevertheless cast some doubt as to the existence of an ongoing and active state of belligerency between them.
Perhaps a fitting conclusion to this summary may be found in the words of author and ambassador Freddy Eytan, of the Jerusalem Center for Public Affairs, in an article dated October 4, 2020, in the Times of Israel entitled: “Lebanon-Israel: a new step towards normalization?”:
Of course, this is not a peace agreement with the country of Cedar because Hizbullah refuses any direct contact or compromise with the ‘Zionist enemy.’
For the first time, Lebanese leaders such as the Shiite President of the National Assembly, Nabih Berry, no longer use the term ‘enemy’ when referring to the State of Israel.
The new negotiations, although limited in time and space, present a de facto “recognition” of the existence of the Israeli neighboring state.
The Israeli Lebanese talks at the U.N. headquarters in Naqoura are blowing a wind of hope and heralding a peaceful climate. They arrive just after the signing of diplomatic standardization agreements with the Gulf Arab states.31
It is hoped that other countries presently attempting to resolve bilateral and regional maritime border disputes in other parts of the world will be observing with interest the anticipated talks between Israel and Lebanon.
This is especially so in those situations where the parties may not necessarily be experiencing situations of hostility, armed conflict, and terror, but entertain vital economic and strategic interests in their respective maritime border areas.
* * *
* The author, a former legal advisor of Israel’s foreign ministry and Israel’s ambassador to Canada, directs the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs and the Center’s international law program.
In his capacity as legal adviser of Israel’s Foreign Ministry, he participated in the international negotiations on the drafting of the UN Convention on the Law of the Sea, as well as in the bilateral negotiations between Israel and Lebanon in 1982-3 and 1991-3.
He is a member of the Israeli panel of judges at the Permanent Court of Arbitration.
2 https://www.state.gov/framework-agreement-for-israel-lebanon-maritime-discussions/ See also reports in the Jerusalem Posthttps://m.jpost.com/breaking-news/lebanon-may-announce-indirect-negotiations-with-israel-644117/amp and Haaretz https://www.haaretz.com/amp/israel-news/.premium-israel-lebanon-agree-to-begin-talks-on-maritime-border-1.9201026?lts=1601798295186
4 The author was a member of the Israeli delegation to the sessions of the conference that negotiated and adopted the convention.
5 https://www.inss.org.il/publication/negotiations-israel-lebanon-maritime-border/ – “The Negotiations between Israel and Lebanon on the Maritime Border” Orna Mizrahi, Oded Eran INSS Insight No. 1180, June 24, 2019
6 Orient Mont-Pelerin Foundation to promote peace and understanding between Europe, the Middle And the Near East through dialogue and knowledge” entitled “The Legal Framework of Lebanon’s Maritime Boundaries: The Exclusive Economic Zone and Offshore Hydrocarbon Resources,” November 2012 by Emeritus Professor Vera Gowlland-Debbas. http://orientmontpelerin.ch/the-legal-framework-of-lebanons-maritime-boundaries-the-exclusive-economic-zone-and-offshore-hydrocarbon-resources/
10 UNCLOS at articles 74 and 83 https://www.un.org/Depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm
11 Id. UNCLOS art. 15 on the delimitation of the territorial sea between states with opposite or adjacent coasts. See also Part XV of the convention on settlement of disputes.
12 “Territorial disputes in the South China Sea” https://en.wikipedia.org/wiki/Territorial_disputes_in_the_South_China_Sea
14 https://pca-cpa.org/en/cases/7/See also https://www.forbes.com/sites/timdaiss/2016/07/12/philippines-wins-south-china-sea-case-against-china-court-issues-harsh-verdict/#2edbc5cd7765 See also https://www.forbes.com/sites/ralphjennings/2017/07/27/chinas-3-worst-border-disputes-and-its-best-border-buddy/#16d4c8204f36
15 The author serves as a member of the Israeli panel of judges to the Permanent Court of Arbitration. For the list of judges see https://docs.pca-cpa.org/2017/07/a3dd3223-current-list-annex-1-members-of-the-court-184006-v84_.pdf
16 This agreement was signed but not ratified by Lebanon because of the latter’s objection to aspects of the subsequent Cyprus-Israel maritime delimitation agreement https://www.mees.com/2012/9/28/op-ed-documents/cyprus-lebanon-cyprus-israel-offshore-delimitation/f994d750-6d1a-11e7-9675-d5a0b0510107#:~:text=Cyprus%20and%20Lebanon%20signed%20in,Economic%20Zone%E2%80%9D%20(EEZ).&text=Lebanon%20argues%20that%20it%20was,EEZ%20and%20its%20maritime%20territory.
23 Id. Article V
25 The author participated in these negotiations as the legal adviser of Israel’s delegation.
28 The author participated in the Israeli delegation to the Washington talks with Lebanon.
Amb. Alan Baker
Amb. Alan Baker is Director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon. He served as legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs and as Israel’s ambassador to Canada.