Tag: Maritime Boundary Disputes

Israel Authorised a Floating Gas Production Platform to Move into a Rich Gas Field Located in an Area that is also Claimed by Lebanon – Can this Unilateral Act be Reconciled with International Law?

Introduction

There remain several disputed maritime areas in the Mediterranean Sea, including between Cyprus and Turkey, and Israel and Lebanon. A pattern that can be observed in these disputed maritime areas is the following: after licences/concessions for mineral resource activity in respect of defined areas that extend into the disputed waters are activated, conflict almost invariably follows between the neighbouring coastal States concerned.[i] In a similar vein, at the beginning of June 2022, following a period of relative calm, a conflict was created between Israel and Lebanon because of the former activating a gas concession extending into their disputed exclusive economic zone (EEZ)/continental shelf area. More specifically, on 5 June 2022, a floating gas production platform, belonging to Energean, which was licensed by Israel to start gas exploitation, arrived at the Karish field; the latter is located in a part of the Eastern Mediterranean to which both Israel and Lebanon lay claim. The Israeli navy has been accompanying the production platform for protective purposes. Upon learning of the arrival of the production platform in the disputed waters, Lebanon protested, referring inter alia to it as an ‘aggressive action’. Lebanon argued that Israel must refrain from such action as long it remains unclear where the maritime boundary lies between the two adjacent States. Hezbollah cautioned Israel that progressing to the exploitation stage would meet with a violent response. However, the production platform, which is now located in a more southern part of the Karish field, has not yet begun exploitation drilling; and it will be several months before the necessary infrastructure is in place that would enable this. On 3 July 2022, reports emerged that Israel shot down three drones that were on their way to the Karish field, which were seemingly dispatched by Hezbollah without the approval of the Lebanese government. This blog post will start with sketching the general background to the maritime boundary dispute between Israel and Lebanon and will then move to discuss whether authorising a floating gas production platform to move into a disputed EEZ/continental shelf area with a view towards gas extraction can be considered lawful under international law.  

The underlying maritime boundary dispute

Complicating matters between Israel and Lebanon is the absence of diplomatic relations between them,[ii] as the two States are officially still at war. As a consequence, there have been no direct negotiations, but the United States of America (US) has been acting as a mediator in this maritime boundary dispute for several years now. On the day that the gas platform arrived at the Karish field, the president of Lebanon invited Amos Hochstein, who has been the US mediator since 2020, to Beirut to express Lebanon’s misgivings with the unilateral move of Israel. In these talks, the Lebanese president reiterated Lebanon’s position that the maritime boundary lies at ‘Line 29’ (see map below). The salient aspect of ‘Line 29’ is that it cuts through the middle of the Karish field. This claim of Lebanon was not new, as it had first emerged in 2020. After this, the indirect negotiations that were ongoing at the time with Israel reached a deadlock, because Israel viewed this claim as being ‘excessive’. By way of comparison, Lebanon has also suggested ‘Line 23’ at times during negotiations (see map below), pursuant to which the Karish field would be located in its entirety on Israel’s side. For instance, this was Lebanon’s position as “a gesture of goodwill”, during indirect talks at the beginning of 2022, and has seemingly been its commonly held position in the period between 2011-2020. The change on the part of Lebanon in 2020 as to its position on where the maritime boundary lies seems partly tied to a change in its negotiation team, which reportedly blamed the previous one for possessing a ‘lack of techincal and legal expertise’. A further reason that has been adduced as underpinning the revision of Lebanon’s negotiation position – in that it shifted to ‘Line 29’ – was new case law, including the 2021 judgment of the International Court of Justice (ICJ) in Somalia v. Kenya,[iii] which was felt to support the Lebanese argument that the boundary between Israel and Lebanon in the Eastern Mediterranean lies further south than it would under ‘Line 23’.   

In the weeks following the renewed tensions between Israel and Lebanon that were set in motion by the arrival of the floating gas production platform in their disputed maritime area, news reports emerged suggesting that Lebanon would be willing to abandon its claim over the Karish field altogether. This was conditioned on that Israel in return would relinquish any claim over the Qana field, which is located north of the Karish field. Under a proposal of Frederick Hoff (see map below), who was the US mediator between 2010-2012, it was envisaged that the Qana field would be divided between Israel and Lebanon, with the latter receiving a slightly more sizable part (i.e. 57% of the field). Whilst Israel seems to have been willing to accept the proposal, it received a lukewarm reception from Lebanon, more specifically from Hezbollah. The latter is fiercely opposed to the prospect of having to cooperate with Israel in the exploitation of the Qana field, as it could be interpreted as that the relations between Israel and Lebanon were normalising which is antithetical to Hezbollah’s goals.

States’ obligations in disputed EEZ or continental shelf areas

From an international law perspective, Israel’s unilateral action gives rise to several questions. One question is to what extent authorising a floating gas production platform to move into the Karish field, and the possible future undertaking of gas exploitation in a maritime area of overlapping EEZ or continental shelf claims, can be reconciled with the obligations a coastal State has under international law? The incident involving the floating gas production platform has been preceded by other clashes between Israel and Lebanon, which were similarly sparked by the undertaking of activities related to mineral resources within disputed waters of the Eastern Mediterranean Sea.[iv] Especially at the beginning of the 21st century, when Israel started to activate previously given concessions that extended into disputed waters, which led to the discovery of significant amounts of mineral resources in the Levantine Basin, protests and heated exchanges of words between Israel and Lebanon were common occurrences. In their mutual condemnations of each other’s acts, both Israel and Lebanon stated that they would be willing to protect their rights by force, if necessary. Historically, Lebanon’s acts in relation to disputed waters have mainly consisted of opening a tender process for several blocks that extended into areas that Israel felt exclusively belonged to itself, and the granting of a license to a consortium of oil companies covering Qana field.[v] Also, in the wake of each other’s past mineral resources activities that were undertaken in disputed parts of the Eastern Mediterranean Sea, both Lebanon and Israel regularly wrote to the UN Secretary-General to contest the lawfulness of the unilateral acts of the other State.[vi]

As a consequence of Israel authorising the floating gas production platform to move into the Karish field, with a view to commencing gas extraction in the near future, tension arose between Israel and Lebanon. At the core of the maritime boundary dispute is that pending the delimitation of the maritime area where their EEZ or continental shelf claims overlap, there are conflicting sovereign rights of these neighbouring coastal States in relation to the same maritime area, and thus also over any of the mineral resources that are contained therein.[vii] Within the 1982 Law of the Sea Convention (LOSC),[viii] the key provision for determining the lawfulness of authorising an act that is under the jurisdiction of the coastal State is paragraph 3 of Articles 74 and 83 of the LOSC. This paragraph imposes two different types of obligations on neighbouring coastal States pending EEZ or continental shelf delimitation: first, to seek provisional arrangements, which, if successful, allows the States concerned to shelve the delimitation issue; and, second, States must exercise a measure of restraint, in that acts having a jeopardising or hampering effect have to be abstained from.[ix] International courts and tribunals have only more rarely addressed the extent to which neighbouring coastal States can exercise their rights within an area of overlapping EEZ or continental shelf claims in the light of the obligation to not jeopardise or hamper. However that may be, the Tribunal in Guyana v. Suriname, in interpreting the obligation to not hamper or jeopardise under paragraph 3 of Articles 74 and 83 of the LOSC, considered obiter dictum that seismic work did not lead to a breach thereof.[x] In the same case, the Tribunal also addressed the status of exploration and exploitation drilling for mineral resources in a disputed area. It concluded that such drilling has an effect of jeopardising or hampering the final agreement, which made it unlawful for States to proceed therewith in the absence of delimitation or cooperation.[xi]

What are the obligations of a State that is not a party to the LOSC in a disputed EEZ or continental shelf area?

A difficulty concerning the applicability of paragraph 3 of Articles 74 and 83 of the LOSC in the maritime boundary dispute under consideration here is that whereas Lebanon has become a party to the LOSC, Israel has not. In this light, the issue of whether paragraph 3 of Articles 74 and 83 of the LOSC reflects customary international law takes on a particular urgency. It is difficult to answer the question around the customary status of this paragraph with certainty.[xii] Two particular difficulties are the existence of significant contrary State practice, and that States more rarely invoke paragraph 3 of Articles 74 and 83 of the LOSC in their condemnations of when a neighbouring coastal State unilaterally authorises an act that falls within coastal State authority.[xiii] If this paragraph 3 cannot be considered customary, this raises the issue of through the lens of what international law obligations Israel’s activities in a maritime area which is claimed by Lebanon as well, have to be assessed instead.

The assumed inapplicability of paragraph 3 of Articles 74 and 83 of the LOSC, for the sake of argument, does not mean that there is an absence of relevant law. Rather the contrary: there are various general rules of international law that are on States irrespective of whether they are party to the LOSC, which come in two forms: customary international law and general principles of international law.[xiv] Amongst these are the following obligations: first, States must settle their disputes peacefully, which excludes settling them through force; second, States have to show due regard for each other’s rights; and third, States have to act in good faith; and they must not abuse their rights.[xv] Other more specific obligations can be derived from these general rules. Particularly relevant in this regard are two specific obligations: to not threaten irreparable prejudice to each other’s rights and that when a dispute arises, the States involved must refrain from taking acts that lead to an aggravation or extension thereof.[xvi] A common denominator of these obligations is that States have to exercise restraint, which similarly extends to neighbouring coastal States that are faced with maritime boundary disputes, and is hence applicable to the situation between Israel and Lebanon. The main difficulty that arises is determining the extent to which it is required that neighbouring coastal States exercise such restraint. A further difficulty is that the exact measure of restraint that has to be exercised is entwined with the context of a maritime boundary dispute.[xvii] To home in on the obligation of a State to not cause irreparable prejudice to rights, which was inter alia addressed by the ICJ in the Aegean Sea Continental Shelf (Interim Measures) case. It considered whether the unilateral seismic work undertaken by Turkey within a disputed continental shelf area required that interim measures of protection should be indicated.[xviii] The ICJ answered this question in the negative, the key consideration being that the infringement caused to Greece’s rights over the disputed continental shelf area could be repaired after delimitation.[xix] More invasive activities, including exploratory drilling, placing installations and mineral resource exploitation, were deemed by the ICJ to detrimentally affect the other’s State rights to a degree that irreparability would ensue. This would have been sufficient reason for the ICJ to institute interim measures of protection. Although this finding was made in an interim measures procedure, its relevance is not isolated to this context. For example, when looking at the relevant case law, it can be observed that to not threaten irreparable prejudice to rights has been set as the main threshold by international courts and tribunals, which needs to be exceeded in order to assume the unlawfulness of a unilateral act falling under the jurisdiction of the coastal State within a disputed maritime area.[xx]

Is there a silver lining to the clash between Israel and Lebanon resulting from the floating gas production platform moving into the Karish field?

The current state of international law is that sending a floating gas production platform, with the aim of beginning unilateral gas extraction within a disputed EEZ or continental shelf area, is difficult to square with the international obligations a coastal State has in relation to such an area, rendering Israel’s unilateral act likely contrary to current international law. Somewhat paradoxically, in the situation between Israel and Lebanon, arguably, the silver lining to the undertaking of this unilateral act by Israel, despite that it led to flaring tensions, is that it has blown new life into the indirect negotiations on where the maritime boundary lies between the two States, which if successful would greatly benefit both States, certainly in economic terms. However, as the history of the maritime boundary dispute between Israel and Lebanon illustrates, there are more factors to contend with than merely economic ones, and which may well ultimately continue to stand in the way of Israel and Lebanon reaching a final boundary agreement; this importantly includes the political landscape.

*** This blog post has also been kindly posted, in slightly amended form, on the blog of the Journal of Territorial and Maritime Studies (JMTS Online) at https://www.journalofterritorialandmaritimestudies.net/post/israel-stations-gas-platform-in-disputed-waters.

[i] Y van Logchem, The Rights and Obligations of States in Disputed Maritime Areas (Cambridge University Press, 2021), pp. 249-276; NA Ioannides, Maritime Claims and Boundary Delimitation: Tension and Trends in the Eastern Mediterranean Sea (Routledge, 2021), pp. 51-53.

[ii] E.g. T Scovazzi, ‘Maritime Boundaries in the Eastern Mediterranean Sea’ (2012) Policy Brief 1, 8–10, 11 June 2012, available at www.gmfus.org/publications/maritime-boundaries-easternmediterranean-sea.

[iii] Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) (Judgment) [2021], available at https://www.icj-cij.org/en/case/161/judgments.

[iv] Van Logchem, supra note 1, pp. 264-269.

[v] Letter of the Permanent Mission of Israel to the United Nations addressed to the Secretary-General, UN Doc. MI-SG-12212017, 21 December 2017.

[vi] See e.g. Letter of the Permanent Mission of Israel to the United Nations addressed to the Secretary-General, UN Doc. MI-SG-02022017, 2 February 2017; Letter of the Permanent Mission of Lebanon to the United Nations addressed to the Secretary-General, UN Doc. 574/2017, 20 March 2017.

[vii] Y van Logchem, ‘The Rights and Obligations of States in Disputed Maritime Areas: What Lessons Can Be Learned from the Maritime Boundary Dispute between Ghana and Cote d’Ivoire?’ (2019) 52(1) Vanderbilt Journal of Transnational Law, p. 130; DH Anderson and Y van Logchem, ‘Rights and Obligations in Areas of Overlapping Maritime Claims’, in S Jayakumar et al. (eds.), The South China Sea Disputes and Law of the Sea (Edward Elgar, 2014), p. 198.

[viii] United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3 (LOSC).

[ix] See e.g. Y van Logchem, ‘The Scope for Unilateralism in Disputed Maritime Areas’, in CH Schofield et al. (eds.), The Limits of Maritime Jurisdiction (Martinus Nijhoff, 2014), pp. 178-181.

[x] In the Matter of an Arbitration between Guyana and Suriname (Guyana v. Suriname) [2007] XXX RIAA 1, p. 132, para. 467.

[xi] Ibid., p. 137, paras. 480–481.

[xii] Van Logchem, supra note 1, pp. 172-174.

[xiii] Ibid., pp. 172-173.

[xiv] Ibid., pp. 67-86

[xv] Ibid.

[xvi] Ibid., pp. 74-78.

[xvii] Ibid., pp. 302-306.

[xviii] Aegean Sea Continental Shelf (Greece v. Turkey) (Interim Measures) [1976] ICJ Rep 3, Oral Pleadings, pp. 108, 119.

[xix] Aegean Sea Continental Shelf (Interim Measures), p. 10, para. 30.

[xx] See e.g. Report on the Obligations of States under Articles 74(3) and 83(3) of UNCLOS in respect of Undelimited Maritime Areas (British Institute of International and Comparative Law, 2016), pp. 37–38; Van Logchem, supra note 1, pp. 74, 78, 155.

The Award of the Arbitral Tribunal in the South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China): the legitimacy of China’s position takes a heavy (at least symbolic) blow

On 12 July 2016, the Arbitral Tribunal, established pursuant to Annex VII of the 1982 Law of the Sea Convention (LOSC or LOS Convention), delivered its award in the South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China). In 2013, the proceedings were unilaterally initiated by the Philippines concerning the relevant disputes in the South China Sea between the Philippines and China. Having declared under Article 298(1)(a) LOSC its non-acceptance of arbitration with respect to maritime boundary disputes or those involving historic titles, China has refused to participate in the proceedings. Irrespective of the refusal of China to participate – which, in hindsight, seems to have not worked to its advantage – the Tribunal found in 2015 that it had jurisdiction to proceed to deal with the matter on the merits.

A critical aspect for the Tribunal to assess was whether the declaration made by China pursuant to Article 298(1)(a)(i) LOSC would prohibit it from considering the case on the merits, because the submissions of the Philippines were concerned with categories of disputes that China has excluded from the jurisdictional reach of an international court or tribunal: those concerning a historic title or maritime delimitation. The Tribunal concluded that the matters brought to its attention did not bear on the issue of delimitation (para. 214), since disputes over whether certain maritime features have entitlements to maritime zones are separate from the issue of delimitation, which is essentially concerned with dividing overlapping entitlements that have been established. On the matter of a historic title, the Tribunal went to analyse the meaning of ‘historic title’. In this context, it was deemed critical that reference was made to ‘title’, which means in legal jargon the complete ownership over something. The word ‘sovereignty’ only surfaces in the LOSC in connection with the territorial sea, where the coastal State has sovereignty up to a point that is 12 nautical miles (nm) removed from its coast. Given the Chinese reliance on that it has certain historic rights over the South China Sea, its claim was interpreted as not being concerned with the claiming of a historic title (paras. 225-226, 229).

There are a number of critical substantial findings of the Tribunal to be found in the award, some aspects which may have more wide-reaching implications. The following four findings will be briefly discussed in this blog post:

  1. One of the main findings of the Tribunal is that it dismissed the validity under international law of the Chinese ‘nine-dash line’. The specifics of the nine-dash line have never been really elaborated on by China, and have given risen to different interpretations (see e.g. here, here, here and here). One interpretation is that China has claimed to have some sort of a ‘special’ historic right over the relevant areas of the South China Sea that are within the nine-dash line, by virtue of a long and consistent practice of where some measure of authority was continuously exercised. A second interpretation is that the maritime features located within the nine-dash line are all under the sovereignty of China and, at least some of them, could project maritime zones up to at least the 200 nm limit. According to the Tribunal, the extent of maritime entitlements of States in the South China Sea are regulated by the LOSC, and the nine-dash claim of China, as far as it goes beyond the limits imposed by the LOSC, is superseded by the LOSC. Although the Tribunal found the alleged Chinese historic rights to be fully incompatible with the LOS Convention, basically, the rights China claimed to have are in fact assigned to other coastal States in the area under the concept of the Exclusive Economic Zone (EEZ). However, the door was left open for that under certain circumstances – and following, amongst others, the judgment in the Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom) – a historic title and right might be brought under the regime set out in the LOS Convention (para. 238).
  2. Another critical finding was that none of the maritime features China claims to have sovereignty over, including those that are part of the hotly contested Spratly Islands, have entitlements to an EEZ or continental shelf. Therefore, according to the Tribunal, there was no overlap of the entitlements of China and the Philippines to the same maritime space, given that China has no territory from which it is entitled to claim maritime zones up to at least 200 nm, which would have otherwise created an overlap with the entitlements and claims of the Philippines. As regards the hotly contested Spratly Islands, the reasoning of the Tribunal suggests that these have at best an entitlement to a territorial sea and a contiguous zone. According to the Tribunal, none of the disputed maritime features that are part of the Spratly Islands meet, without human assistance, the conditions set out under Article 121(3) of the LOSC, that is that they can sustain human habitation or economic life of their own. The threshold concerning when isolated maritime features would be entitled to an EEZ and continental shelf seems to have been set high by the Tribunal. Its approach as to how to define a ‘rock’ within the meaning of Article 121(3) of the LOSC may have more widespread consequences, and may raise some concerns on the part of other States that are faced with similar issues.
  3. Pursuant to the LOS Convention, different types of maritime features have different entitlements to generate maritime zones, ranging from those that can claim zones up to the 200 nm mark, or even beyond, to those that due to their characteristics have no entitlements to maritime zones at all. Falling into this latter group are so called low-tide elevations. These can, assuming they are located in close proximity to the coasts of States, be relevant in the measuring of the baseline, but have no entitlements to maritime zones of their own. In contrast, islands are principally treated similarly to land and have entitlements to a territorial sea, EEZ and continental shelf. Rocks, on the other hand, may only be accorded part of the treatment that islands receive: that is, whenever they fall within the paragraph 3 exception of Article 121 LOSC, that they are unable to sustain human habitation or have an economic life of their own, the most they can generate in terms of maritime zones is a territorial sea, and a contiguous zone of an additional 12 nm. For example, Scarborough Shoal, which has been the venue for various incidents between China and the Philippines, was classified by the Tribunal as a rock that is unable to meet the two conditions set out in Article 121(3) of the LOS Convention. Further, the Tribunal found that Mischief Reef is a low-tide elevation, which is thus unable to generate any maritime zones of its own. As a result of this classification, and given that low-tide elevations cannot be appropriated by States, there could be no sovereignty dispute over Mischief Reef, and more generally between China and the Philippines. The Tribunal went on to state that Mischief Reef is firmly placed in what can be regarded to be the EEZ of the Philippines. Therefore, amongst others, fishing activities that have been performed by Chinese fishermen at Mischief Reef infringed on the sovereign rights the Philippines has over the EEZ, pursuant to the LOS Convention. This same reef was also used by China to construct a large artificial island on top, whilst proceedings before the Tribunal were already set in motion. Given that this happened without the consent of the Philippines, which would have been required because Mischief Reef is a low-tide elevation located within its EEZ and continental shelf, China infringed on the sovereign rights that the Philippines has in this regard.
  4. More generally, and in addition to the actions undertaken concerning Mischief Reef, the land reclamation works and construction of artificial islands that China conducted on a broader scale, and in relation to a number of other maritime features (e.g. Cuarteron Reef, Fiery Cross Reef) in the South China Sea, were heavily condemned by the Tribunal. The Tribunal found that China aggravated the existing dispute between China and the Philippines through the reclamation works it conducted, whilst the dispute was brought to the consideration of the Tribunal. It also found that the Chinese actions aggravated the existing dispute between the parties over the Spratly Islands – however, it needs to be noted that this dispute figures, besides China and the Philippines, four additional players (i.e. Taiwan, Malaysia, Vietnam and Brunei). The Chinese reclamation works and building of artificial islands were also condemned for not being in line with the obligations that States have under the LOSC, particularly under Article 192 and 194(5) LOSC, in relation to the protection of the marine environment.

Directly after the award on the merits was handed down, China sought to brush over the validity of the award as being farcical in the extreme. In a further – undeniably weak – attempt to challenge the value of the award, a government sanctioned press release resorted to attacking a number of the individual members of the Arbitral Tribunal for exhibiting a perceived lack of consistency between the decision that the Tribunal arrived at and their earlier pronounced views in literature. In support of its position that the Arbitral Tribunal wrongly found to have jurisdiction over the dispute, in its view essentially by misconstruing what lies at the core of the dispute, China in this same press release cited heavily from an article previously published by Talmon, who expressed his misgivings over the Tribunal assuming jurisdiction over the dispute.

Given that the award was dismissed with a significant measure of exaggeration by China, and that it already indicated earlier, and subsequently reinforced its intentions to not follow the final outcome of the award, the question remains as to what effect the award might have on the (sometimes volatile) situation in the South China Sea. The position that China finds itself in is not an easy one. However, contrary to the ad hominin arguments aimed against individual members of the Tribunal, and the perceived biased composition it was argued to have according to the Chinese side, there is no doubt that the Tribunal was impartial and constructed in conformity with the LOS Convention – which not unimportantly, China is a party to. Although the award of the Tribunal is not enforceable, it carries substantial (diplomatic) weight. The fact that its legal position concerning the South China Sea was overwhelming rejected by the Tribunal will necessitate a rethinking on the part of China of its legal arguments, if it wants to pursue an amicable solution through diplomacy. Entering into negotiations with other claimant States bordering the South China Sea, on the basis of a position that has been essentially rejected by an independent Tribunal that has been constructed in accordance with the LOSC, is unlikely to bear much fruit.