Caretaker government can pass Lebanon deal by invoking ‘essential public need’

Outgoing coalition lacks a Knesset majority but, as with past border delimitation agreements, doesn’t appear to need parliamentary approval to okay US-brokered deal

Energean's floating production system (FPSO) at the Karish gas field in the Mediterranean Sea. (Energean)
Energean's floating production system (FPSO) at the Karish gas field in the Mediterranean Sea. (Energean)

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 recently announced that they had accepted a compromise put forward by US mediator Amos Hochstein, which includes a formal agreement on parts of the maritime border separating their respective “territorial waters,” as well as delineation of the exclusive economic zones that belong to the two states beyond their territorial waters. Under international law, in these latter areas, states do not have sovereign title, but do have specific sovereign rights to manage or exploit any natural resources found there, including awarding leases to a third party.

What does the maritime border agreement say?

It appears that the agreement on the territorial waters follows Israel’s position with respect to the first three nautical miles from the coast and follows the Lebanese position on the remainder of the area (for nine additional nautical miles). At the same time, the agreement on delimitation of the economic areas follows Lebanon’s stance, though, in return for compromising on these economic borders, Israel will receive a certain percentage of Lebanon’s income from natural gas extraction in its economic zone (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 Israel’s 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 a ruling mandate 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 — 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 reach an agreement now.

Israel’s security cabinet meets to discuss the Israel-Lebanon maritime border agreement, October 12, 2022 (Amos Ben Gershom/GPO)

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 final approvement from 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 High Court arguing that the maritime border agreement with Lebanon should 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, 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) — 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.

The above article came from the Israel Democracy Institute, which the author Yuval Shany joined as a senior researcher in 2008 and served as vice president of between 2018 and 2022. He is also a law professor at the Hebrew University of Jerusalem, where he holds the Hersch Lauterpacht Chair in Public International Law.

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