On December 13, 2022, Israel’s High Court of Justice (HCJ) issued reasoning for its verdict of October 23, 2022, unanimously rejecting petitions against the signing of a maritime border demarcation agreement with Lebanon by the interim government. (HCJ 6654/22 Kohelet Forum v. the Prime Minister, State of Israel: the Judicial Authority (decision rendered on Dec. 13, 2022).) The agreement was signed on October 27, 2022, just before Israel’s national elections on November 1.
Background to the Case
Before the signing of the agreement, there was no land or maritime border agreement between Israel and Lebanon (the parties). After its withdrawal from south Lebanon in 2000, the Israel Defense Force (IDF) unilaterally placed a line of 10 buoys, eight of them in an area up to about 5 km (about 3.1 miles) offshore, and two others up to 7.5 km (about 4.66 miles) offshore. In 2010 and 2011, respectively, Israel and Lebanon submitted to the U.N. geographical coordinates defining their respective claims for maritime demarcation lines for coastal waters and the exclusive economic zone.
In 2011, the parties started negotiations under U.S. mediation in an attempt to reach an agreement concerning disputed maritime territory. After a long period of lack of progress, the negotiations accelerated in 2018, and in September 2020, the parties agreed on conditions for advancing the negotiations. In October 2020, rounds of intensive negotiations with American mediation began at the UNIFIL base in Naqoura. The parties ultimately agreed on a draft agreement in October 2022. Israel’s prime minister submitted the draft to the government on October 11, 2022. The government then forwarded the draft agreement to the chair of the Knesset (Israel’s parliament), who convened the Knesset plenum. A copy of the draft agreement was provided to Knesset members for review for a period of 14 days, ending on October 26, 2022.
Because the Knesset had dissolved itself on June 30, 2022, and scheduled national elections for the 25th Knesset for November 1, 2022, the government in power at the time (the 36th government) was serving as an interim government while it sought to ratify the agreement with Lebanon.
The petitioners argued that the interim government, which no longer enjoyed the confidence of the Knesset, did not have the authority to sign the maritime agreement with Lebanon before the national elections. They further claimed that the signing of the agreement was conditional upon receipt of approval by a referendum or by a qualified majority of 80 of the 120 members of the Knesset.
Relevant Laws
Basic Law: Referendum requires the government to obtain approval by a referendum or by a qualified majority of 80 of the 120 members of the Knesset members for the removal of application of Israeli law, jurisdiction, and administration from a territory.
In accordance with section 1 of the Law, Jurisdiction and Administration Ordinance 5708-1948,
[a]ny law applicable to the State of Israel as a whole will be considered as applying to the entire territory[,] which includes both the territory of the State of Israel and any part of the Land of Israel[,] that the minister of defense has defined in an order as being held by the Israel Defense Forces.
The Court’s Decision
Application of the Basic Law: Referendum
In his opinion, Justice Uzi Vogelman stated that the wording of section 1 of the Law, Jurisdiction and Administration Ordinance did not “optimally clarify the limits of the applicability of Israeli law. The accepted view, however, was that Israeli law applied to the territories designated in the UN partition map, as well as to those seized by the Israel Defense Force in the 1948 War of Independence.” In addition, Israeli law, jurisdiction, and administration applied to East Jerusalem by an order issued by the government following the 1967 Six-Day War and by confirmation under the 1980 Basic Law: Jerusalem Capital of Israel, and to the Golan Heights under the Golan Heights Law, 5742-1981.
According to legislative history, the Knesset adopted the Basic Law: Referendum with the intention to increase Knesset oversight of possible governmental concessions regarding the Golan Heights (and East Jerusalem). In the current case, Vogelman determined that although the government had the tools to explicitly apply the law, jurisdiction, and administration to the maritime area in question, it did not do so and consciously refrained from taking sovereign actions, including military activities, in that area. Consequently, the area subject to the agreement was not an area where Israeli law, jurisdiction, and administration applied. Therefore, the approval mechanisms provided in the Basic Law: Referendum did not apply to the agreement.
The Interim Government’s Authority to Sign an International Agreement
The court’s president, Esther Hayut, rejected the petitioners’ arguments that, because the interim government did not enjoy confidence by the Knesset, it had no authority to take irreversible measures that would restrict future governments regarding the demarcation of Israel’s northern maritime border. She determined that while an interim government must exercise restraint in nonessential, nonurgent matters during an election period because it no longer enjoys the Knesset’s confidence, the duty of restraint did not exist where there was an essential public need to act.
The court had generally refrained from intervening in issues related to foreign affairs and security, she opined. In this case, however, the government had proved the existence of a clear and vital need to complete the process of approving the agreement before the election date. Moreover, the agreement was not the result of an initiative formulated during the election period but rather the product of contacts that began several years ago and have accelerated since 2020.
The Requirement for Knesset Approval
Justice Noam Sohlberg in his opinion wrote that there was no requirement under the Basic Law: The Government and relevant operative rules, or under the doctrine of legal custom, for the government to bring international agreements to the Knesset for approval. According to Sohlberg, the government’s decision to submit the draft agreement to the Knesset’s review without bringing it for its approval did not “radically deviate from the bounds of reasonableness,” as the petitioners claimed. In the current unique circumstances, Sohlberg concluded, considering security and political considerations, there was no basis to interfere with the government’s decision to enter the agreement.
Justice Hayut agreed that there was no extreme lack of reasonableness in not bringing the agreement to the Knesset for approval in the current case, particularly in light of highly confidential and sensitive information that the Cabinet could not present before the Knesset plenum, which was a key component in the decision to sign the agreement. This conclusion, however, did not negate the possibility that a future government might have to bring international agreements to the Knesset for approval “given the full range of considerations and balances required” under the relevant circumstances.
Ruth Levush, Law Library of Congress
December 30, 2022
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