By Célia Frébert
Lawyer at SRDB Law Firm
Introduction by Philippe DELEBECQUE
Professor of Law at University of PARIS I Sorbonne
The delimitation of maritime borders between States is a very delicate question. The stakes are often considerable, and not only in economic terms.
Geopolitical balances are often at issue, as evidenced by the conflict between Lebanon and Israel and which forms the subject of Celia Frebert’s article.
Diplomacy shows its limits here, so that it is not excluded that only a judicial or arbitral decision will be able to put an end to the dispute or at least appease it.
Moreover, it is questionable whether the parties would not have an interest in submitting their dispute to the International Tribunal for the Law of the Sea (ITLOS) which has been able to settle some difficult conflicts, such as the one between Mauritius and the Maldives. However, it should be ensured that any of the States in question has not ruled out, in accordance with Article 298 of the Montego Bay Convention, recourse to ITLOS and preferred to rather submit the dispute to the ICJ. In any case, whatever will be the jurisdiction in charge of settling this matter, the litigation raises many delicate technical and legal issues which will be particularly interesting to follow.
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The relationship between Lebanon and Israel has always been marked by a common history of wars and conflicts. The two countries, still officially in a state of war, never normalized their relations. Nevertheless, the stabilization of their land borders had hinted at a possible improvement in their relations. But the discovery of hydrocarbon reserves in the Mediterranean Sea revived their animosity, on the maritime level this time.
To date, in the Eastern Mediterranean Sea[1], 10 maritime borders (approximately 1223 nautical miles) have still not been determined and delimited by treaties or agreements[2]. Only Cyprus defined some of its borders by concluding an agreement with Egypt in 2003 and an agreement with Israel in 2010. The signing of this last agreement and the discovery in 2009 of the Tamar 2 gas field by Israel has greatly encouraged Lebanon to abandon the ratification of the draft agreement of delimitation of its borders with Cyprus that was initiated in 2007.
Lebanon is also strongly contesting this agreement, considering that it deprives him of 860km² belonging to its Exclusive Economic Zone. The EEZ is a strip of sea between the contiguous zone and international waters and extends to 200 nautical miles from the baseline. States have an exclusive right to exploit natural resources on the ground, in water and underground.
The stakes are therefore high because Lebanon and Israel are both extremely dependent on their energy imports and poor in natural resources. Israel, far from being very popular among its neighbors, sees in these new deposits the opportunity to ensure its energy security. These 860km² possibly exploitable are therefore the object of covetousness.
Two Exploration and Production agreements were also signed between Total and the Lebanese Republic to drill in blocks 4 and 9 (with ENI and Novatek as partners). Exploration drilling for Block 4, 30km off the coast of Beirut, began at the end of February 2020 and was completed two months later, in April. Traces of hydrocarbons were observed but no reservoirs were encountered[3]. Lebanese hopes had then turned toward block 9 in the south of the country, which was to be explored by May 2021[4]. But this block encroaches on the disputed area between the two countries.
It is very likely that this dispute will last for several reasons. Firstly, because of Lebanon’s categorical refusal to negotiate directly with Israel. The two States do not maintain diplomatic relations and Lebanon does not want any possible negotiations to be interpreted as a normalization of relations. This situation leads to the recourse to a third-party mediator whose task is complicated by the chaotic political situation in Lebanon and the constant postponement of negotiations.
Negotiations have recently been suspended until further notice due to Lebanon’s willingness to extend the contested total area to 2.290Km².
In 2010, the United States initiated a promising mediation that resulted in the following delimitation proposal: 55% of the area should be allocated to Lebanon and the remaining 45% should go to Israel. This delineation, nicknamed the Hof line, by the name of the American mediator who proposed it, represented a compromise between the two states’ demands. Lebanon finally rejected it in 2020 saying that it did not respect international law and that a new line had to be defined by international experts.
Which principles of international law on maritime delimitation?
However, international law does not lack the tools to settle such disputes. The United Nations Convention on the Law of the Sea, otherwise known as the Montego Bay Convention, is the reference. Ratified by 168 States, it provides a number of means to settle possible maritime disputes between States Parties.
Lebanon signed it on December 7 1984 before ratifying it on January 5 1995. In doing so, Lebanon became the only State among its direct neighbors (with the exception of Cyprus) to have ratified it. Neither Israel, nor Syria, nor even Turkey have ratified the Convention. However its content, being a reflection of customary law, does not exclude that some of these provisions may apply to States not parties. Israel has also recognized the application of international law of the sea, which implies the provisions of UNCLOS.
However, UNCLOS does not give us any direct answer concerning the delimitation of the EEZ. Article 74 of the Convention provides that “The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution”.
This notion of fairness is therefore reflected in the case law of the International Court of Justice, which now has some experience in maritime disputes. It is used to weight the equidistance method (midline) often used in law of the sea. In the 1969 North Sea Continental Shelf case concerning the Netherlands, Denmark and the Federal Republic of Germany, the ICJ already explained that delineations had to be carried out in accordance with “equitable principles”. Their customary nature has, moreover, been recognized in the case of the delimitation of the maritime border in the Gulf of Maine region of 1984 (Canada against the United States of America). These principles remain vague since there is no single, universal way to achieve this equity. The term principle contains a certain legal vagueness.
There is indeed a plurality of methods of delimitation of borders, equidistance is simply the most popular and most often used in law of the sea.
The use of a line perpendicular to the general direction of the coast, the delimitation by means of parallels and meridians, the establishment of corridors with parallel lines and the bisector method between coast branches may also be methods used in the context of negotiation[5]. Several methods can also be combined to arrive at a solution.
What are the solutions?
Under Article 279 of UNCLOS and Article 33 of the Charter of the United Nations, States are required to settle any dispute peacefully. This emblematic provision of the Charter of the United Nations, which is imposed on all States, is also imposed on Lebanon and Israel. Since the two States have not been able to agree on the settlement of their dispute through negotiations and recourse to a mediator, it seems advisable to have recourse to an arbitrator or to start a procedure before the International Court of Justice.
These two methods have the advantage of providing a mandatory decision that will be binding on the parties. However, an appeal to the ICJ seems more relevant given the tensions between the two countries. Recourse to an arbitrator necessarily implies the drafting of an arbitration compromise which must determine the arbitrator or arbitrators appointed by the parties. But it may be very difficult to choose them because of the opposing political sensitivities of the two States. Negotiations are already very slow and difficult in normal times and such a procedure would only further delay the resolution of the dispute.
The creation of an arbitral tribunal implies compliance with the resulting decision, even if the latter is not favorable to one of the parties. It is therefore essential that both States maintain stable diplomatic relations based on mutual respect and values of cooperation. Thus, in 1992, the maritime dispute between Canada and France over the delimitation of maritime spaces off Saint-Pierre and Miquelon was settled. The arbitral tribunal’s decision was far from satisfactory to France since the “tiny portion of the area”[6] it obtained “prohibits it from any autonomous resource management policy”[7]. It is therefore impossible for France to benefit from the central attribute of the EEZ which is the exclusivity of resource exploitation. France nevertheless accepted the arbitral award and the two States amended their common fisheries agreement to integrate and regulate the new zone thus delimited in 1994.
It is very unlikely that this scenario could occur between Lebanon and Israel. An adverse arbitral award for one of the parties will most likely not be enforced by the latter. This is particularly the case with the 2016 Hague arbitration on the maritime dispute between Manila and the People’s Republic of China. The Permanent Court of Arbitration of the Hague ruled in favor of the Philippines and went even further by considering that China had violated the sovereign rights that the Philippines possessed in its EEZ. Although this arbitration is based on UNCLOS, China has refused to apply it, thus positioning itself against current international law. Tensions have not abated since then and the rivalry between the two States continues to grow.
This dispute, like the Israeli-Lebanese dispute, is above all political. Conflicts over resources have always been very sensitive since they can easily reverse the logic of power in certain regions of the world. The discovery of oil and natural gas in the Middle East is never a trivial issue, which makes any dispute even more difficult to resolve.
A request before the International Court of Justice seems suitable because of the objective neutrality of this judicial body and its rich jurisprudence in matters of maritime disputes. Its jurisdiction is not lacking in this case since the dispute can be apprehended under the aegis of the Charter of the United Nations. The parties may, under Article 31 of the Statute of the Court, each designate an ad hoc judge. This avoids the negotiations on the choice of arbitrators that can be observed during an arbitral procedure. Despite this, it is unlikely that Israel would agree to submit this dispute to the ICJ and that Lebanon would file a request because this simple legal act would recognize Israel as a State (a legal entity with its own rights). This is what Lebanon precisely wants to avoid.
An eventual referral to the International Tribunal for the Law of the Sea (ITLOS) appears to be compromised in this case because of Israel’s failure to ratify UNCLOS. Nevertheless, pursuant to Article 20 paragraph 2 of the ITLOS Statute, the tribunal may hear a dispute on a Non-Party State, provided that the express consent of the parties is obtained.
A dead-end?
So there are many legal solutions. International law provides a range of dispute settlement and delineation methods. Many maps also exist in this dispute in support of the claims of both parties. So this is not a dispute suffering of a lack of scientific data. However, many political parameters are to be taken into account, including the risk of regional conflicts.
The constant postponement of negotiations seems to feed a voluntary political vagueness. It is unlikely that this dispute will be resolved in the near future. A new US negotiator has nevertheless been appointed in order to relaunch the negotiations: Amos Hochstein, US senior advisor for Global Energy Security, arrived in Beirut on October 19[8]. His task should be facilitated by the formation of a government in Lebanon.
France and the European Union could also play a role in the progress of the negotiations.
Celia Frebert
[1] Area including: Greece, Turkey, Egypt, Israel, Lebanon, Syria and Cyprus
[2]Roudi BAROUDI « Unlocking Peace and Prosperity : How to resolve maritime borders disputes in the eastern Mediterranean sea ? », Issam Fares Institute for Public Policy and International Affairs AUB, Research report, March 2020 Beirut, 69pages
[3] Total E&P Liban https://www.total-liban.com/fr/qui-sommes-nous/total-au-liban/exploration-and-production
[4]Commerce du Levant « Les attentes autour du gaz ont été amplifiées pour des raisons politiques », propos recueillis par Muriel Rozelier, publié le 15 mai 2020, Rubrique Pétrole et Gaz https://www.lecommercedulevant.com/article/29817–les-attentes-autour-du-gaz-ont-ete-amplifiees-pour-des-raisons-politiques-
[5] French Government Website Site Portail National des limites maritimes « La méthode de délimitation des espaces maritimes français », https://limitesmaritimes.gouv.fr/pour-en-savoir-plus/les-methodes-de-delimitation-des-espaces-maritimes-francais
[6] Elisabeth Zoller « La sentence franco-canadienne concernant Saint Pierre et Miquelon », Annuaire Français de Droit International, 1992, 38, pages 480à500, page 482 https://www.persee.fr/doc/afdi_0066-3085_1992_num_38_1_3081
[7] Ibid
[8] L’Orient le Jour « Amos Hochstein à Beyrouth pour des discussions avec les responsables libanais », le 19 octobre 2021, https://www.lorientlejour.com/article/1278459/amos-hochstein-a-beyrouth-pour-des-discussions-avec-les-responsables-libanais.html
