High Court justices skeptical over appeals against Lebanon maritime deal

The judges of the High Court of Justice expressed skepticism towards some of the central arguments brought by organizations petitioning against the maritime border agreement approved by the government with Lebanon during a hearing on Thursday afternoon.

The petitions have been brought by the Lavi lobbying organization, the Kohelet Forum, and MK Itamar Ben Gvir and the case is being heard by Supreme Court President Esther Hayut, Vice President Uzi Vogelman, and Justice Noam Sohlberg.

The deal delineates a maritime border between Israel and Lebanon and divides offshore gas reserves between the two countries, with Israel ceding the Qana gas field to Lebanon but receiving a share of any revenue obtained from it in the future.

At the beginning of Thursday’s hearing Hayut noted that the agreement was being challenged on three fronts: whether Israel’s Basic Law: Referendum which requires any territorial concessions be put to a referendum applies to the deal with Lebanon, whether an interim government has the authority to sign such a deal, and, if it does, whether it needs to bring it to a vote in the Knesset.

Attorney Ariel Ehrlich for Kohelet argued that the Basic Law: Referendum was designed exactly for such a deal since a portion of Israel’s territorial waters, albeit a very small area, is being ceded to Lebanon in the agreement.

“The law applies to every place where Israel has sovereignty and is designed to limit the government’s powers on this issue,” said Ehrlich.

Prime Minister Yair Lapid convenes his security cabinet to discuss the Israel-Lebanon maritime border agreement, October 12, 2022. (Amos Ben Gershom/ GPO)

Hayut however questioned whether or not Israel had ever applied its full legal jurisdiction to the area in question since the maritime border has remained in dispute until now.

She also noted that the agreement stipulates that the status quo regarding the territorial waters close to the shore will be preserved until a final agreement between the two countries is reached on both land and sea borders.

Despite this agreement, Israel and Lebanon remain at an official state of war and have not agreed on permanent borders between the two countries.

The implication of Hayut’s comments was that the referendum law would not apply and the government would be entitled to cede this territorial water.

Attorney Yitzhak Bam for Lavi set forth his organization’s central contention that the government is obligated to bring the agreement to the Knesset for its approval, based on the practice of previous interim governments which brought the Abraham Accords, and other international treaties to a vote in the Knesset plenum.

“There is a binding custom to bring important diplomatic agreements to the Knesset for approval when there is an interim government with a democratic deficit,” argued Bam.

Vogelman voiced skepticism however as to whether parliamentary customs could be considered binding.

Israeli Ministry of Energy Director Lior Schillat attends an open discussion of the maritime border agreement with Lebanon during a meeting of the Foreign Affairs and Internal security Committees, at the Knesset, the Israeli parliament in Jerusalem on October 19, 2022. (Olivier Fitoussi/Flash90)

Bam further asserted that an interim government that did not enjoy the confidence of the Knesset could not sign such a treaty since it would bind future governments despite not having a mandate from the Knesset to do so.

Vogelman noted however that the government has argued that there are urgent security, economic and political concerns that necessitate signing the agreement now.

He also opined that the responsibility for such agreements lay with the government, albeit an interim one, and not the court.

Lebanese President Michel Aoun has signed and approved the deal but his term of office expires at the end of October and Israeli government officials have expressed concern that the deal may not be available under a new president and it could be a long time before Lebanon has a new leader given the political and economic crisis in the country.

Bam argued nevertheless that since “the government is not operating with the confidence of the sovereign, that is, the Knesset, the urgency of the issue should be brought to the Knesset for its approval.”

Following the presentation of oral arguments by the petitioners and rebuttals by the state, the justices were briefed behind closed doors on classified material pertaining to the agreement relating to the government’s claims that approving the deal now is an urgent matter with security and economic considerations.

The government provided the details of the agreement to the Knesset last Wednesday to grant it a two-week period of review before the cabinet votes to give it final approval.

That period ends on October 26. It is likely that the High Court will issue either an interim injunction or a final decision before that date given the extremely short timeline and the impending Israeli general election on November 1.