The discovery of vast hydrocarbon reserves in the Levant Basin, estimated by the United States Geological Survey in 2010 to contain an estimated 122 trillion cubic feet of recoverable natural gas and 1.7 billion barrels of recoverable oil, holds the promise of a significant economic boom to nations in the region, particularly Cyprus, Israel, and Lebanon. Yet this seeming windfall also has the potential to create, or exacerbate, tensions in the region, as the beneficiary nations wrangle over the ownership of, and concomitant ability to exploit and profit from, these gas reserves. One possible conflict—over the right to exploit a gas field called Block 9 that is located in a disputed boundary area between Lebanon and Israel—has generated heated rhetoric between those two countries in recent months. After establishing some basic concepts, this article will examine the nature of the dispute, the law that applies to the delimitation of maritime boundaries, and international dispute resolution mechanisms that provide the best means of peacefully resolving this knotty dispute.
The principal sources of the international law of the sea relevant to this dispute are the United Nations Convention on the Law of the Sea (UNCLOS) of 1982, which came into effect in 1994, and the decisions of international tribunals. Among other things, UNCLOS provides the law as to the maritime zones nations may claim off their coasts, and also the governing principles applicable to the delimitation of maritime boundaries between neighboring nations. A complication related to citing to UNCLOS is that Israel, like the United States but unlike 168 other states, including Lebanon, is not a state party to the convention. Thus, Israel is not bound by UNCLOS’s provisions, nor can it invoke those provisions against other states. However, Israel, like the United States, has accepted that most of UNCLOS’s provisions, including all those implicated in the dispute that is the subject of this article, constitute or are reflective of customary international law, and are thus binding.
UNCLOS also permits coastal states to claim an exclusive economic zone (EEZ) extending from the outer edge of its territorial sea to a point up to 200 NM from its baseline. A coastal state is not “sovereign” over its EEZ, as it is over its territorial sea. Instead, within it, the coastal state is entitled to exercise “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or nonliving, of the waters superjacent to the seabed and of the seabed and its subsoil.” Both Israel and Lebanon have claimed EEZs, which is the underlying legal basis for them to exploit the subterranean gas fields, extending more than 12 NM from their coasts.
The specific dispute on which this article will focus is conflicting claims between Lebanon and Israel as to where the maritime boundary, and thus the extent of each nation’s maritime zones, is; and more particularly, in whose maritime zone, either wholly or in part, lies an offshore area designated by Lebanon as Block 9.
The Rival Claims
In January 2007, a bilateral agreement was signed between Lebanon and Cyprus in which the EEZ boundary between the two nations was depicted by six coordinates judged to be equidistant between the two countries. The agreement itself has not been submitted to the United Nations, and is not otherwise officially published. Point 1, at latitude 33° 38’ 40” north, longitude 33° 53’ 40” east, was selected by the parties as the point marking the southern terminus of their agreed-upon EEZ boundary. This agreement left open the possibility of amending Point 1 at a later date as warranted by future maritime boundary delimitation agreements between either party and Israel. This agreement was ratified by Cyprus in 2009, but not by Lebanon.
On Dec. 17, 2010, Cyprus and Israel entered into an agreement delimiting their shared EEZ boundary. This agreement utilized the same Point 1 as in the Cyprus-Lebanon agreement as the northern terminus of the Israel-Cyprus EEZ boundary line, though both parties explicitly agreed that Point 1 was subject to review or modification “as necessary in light of a future agreement regarding the delimitation of the EEZ to be reached by [Lebanon, Cyprus, and Israel] with respect to such point.” Notwithstanding this temporization, Israel used Point 1 as the terminus of the line Israel claimed as its northern EEZ border in a submission provided to the United Nations on July 12, 2011.
The government of Lebanon, in submissions to the United Nations on June 20 and Sept. 3, 2011, protested the agreement between Cyprus and Israel (referred to as the “occupying power”), as well as Israel’s use of Point 1 as the terminus of its claimed maritime border with Lebanon. According to Lebanon, a point further south that it refers to as Point 23, at latitude 33° 31’ 51.17”, longitude 33° 46’ 08.78”, is the true point at which the three nations’ EEZs meet (a so-called tripoint, which will be discussed later), and thus, in its view, should serve as the terminus of the Lebanese-Israeli maritime boundary, not Point 1. Israel’s use of Point 1, according to Lebanon, would cause Israel to “absorb” part of Lebanon’s EEZ, an action which “constitutes a flagrant attack on Lebanon’s sovereign rights over that zone.” As a result, Lebanon requested that the secretary general “take all measures that he deems appropriate, with a view to avoiding conflict.”
Lebanon cemented its understanding of the Israel-Lebanon maritime boundary by adopting the coordinates of its claimed EEZ in Decree No. 6433, “Delineation of the boundaries of the exclusive economic zone of Lebanon,” of Oct. 1, 2011. These coordinates superseded EEZ coordinates Lebanon had provided to the United Nations on July 14, 2010 and Oct. 19, 2010, and were deposited with the United Nations on Oct. 19, 2011. The coordinates submitted for the median line between Cyprus and Lebanon include, in addition to Points 1-6, which presumably correspond to the points agreed with Cyprus in the December 2010 delimitation agreement, a Point 7 in the north, which Lebanon claims as the terminus of its maritime boundary with Syria, and three additional points (23, 24, and 25) in the south. As mentioned above, Lebanon claims the southern-most of these three points, Point 23, as the terminus of the “southern median line” between Lebanon and “Palestine.” Significantly, Article 3 of Decree No. 6433 recognizes that “[a]s needed, and in the light of negotiations with the relevant neighboring states, the borders of the exclusive economic zone may be refined and improved and, consequently, the list of its coordinates amended, if more precise data becomes available.”
The net effect of each nation’s unilateral claim is a wedge of disputed maritime territory of approximately 860 square kilometers, as depicted below:
Why the Dispute Has Heated Up, and the Dangers
The existence of a disputed maritime boundary, in and of itself, is not unusual, nor is it necessarily worrisome. Such disputes exist in many areas, including between the United States and Canada in the Beaufort Sea north of the Alaska-Yukon border, without affecting diplomatic relations between the involved states. Such was the situation presented by the Lebanon-Israel maritime boundary dispute between 2011 and 2017; though undoubtedly irksome to both states, particularly in view of their troubled past history, the dispute remained relatively quiescent.
This state of affairs changed in January 2017, when Lebanon issued Decree No. 43, a “Tender Protocol for the Award of Exploration and Production Agreements.” This tender protocol set out the bidding process to be followed by prequalified companies for the “First Offshore Licensing Round for Hydrocarbon Exploration Within the Offshore of the Lebanese Jurisdiction,” which had been approved by the council of ministers of the Lebanese Republic by decision number 41 dated Dec. 27, 2012. This first round of offshore hydrocarbon exploration was to make available for leasing no less than five of the 10 blocks (Blocks 1-10) into which the Lebanese offshore area has been divided, as depicted below.
Publication of this tender protocol raised eyebrows and concern in Israel, and resulted in Israel notifying the United Nations on Feb. 2, 2017, of its “serious concern” regarding this development, and of Israel’s continued “openness to dialogue and cooperation” regarding the disputed maritime boundary. In this communication, Israel stated that Lebanon’s Blocks 8, 9, and 10 are in maritime waters that “belong to the State of Israel.” Lebanon responded to this Israeli communication with a note verbale of its own on March 20, 2017. In this note, Lebanon “object[ed] to the contentions and threats of the government of Israel and reaffirm[ed] Blocks 8, 9, and 10 are located within maritime areas that belong to Lebanon.” Lebanon concluded by asserting that the government of Israel is not entitled in any way to interfere with Lebanese economic activity in what it claims as its zone, nor to conduct any economic activity of its own.
The situation went from bad to worse in December 2017, when the Lebanese council of ministers approved the awards of two exclusive petroleum licenses for exploration and production in Blocks 4 and 9. According to this award,
the exploration phase in each block will start upon the approval of the exploration plan and will last up to five years with the possibility of having a one-year extension. The ultimate goal of the exploration phase is to strike a commercial discovery, hence the awarded consortium is committed to implement an exploration programme based on the petroleum industry highest standards and practices.
This award led Israel, in a Dec. 21, 2017 communication to the United Nations, to express its “grave concern regarding the decision of the government of Lebanon, dated 14 December 2017, to purport to grant, without Israel’s consent, offshore licenses … in Israel Block 2 (also referred to as so-called Lebanese Block 9) in maritime areas that are under Israeli sovereignty and jurisdiction.” These developments “have taken place despite Israel’s repeated and explicit objections to this tender process and in direct violation of Israel’s sovereign rights.” The State of Israel, so the communication continued, “will not allow any nonconsensual, unauthorized, economic activity in its maritime areas,” and is “committed to pursuing available and relevant options to protect its sovereign rights.”
Not to be outdone, Lebanon submitted a letter to the United Nations on Jan. 26, 2018, to “respond to and protest” Israel’s Dec. 21 submission. In it, the government of Lebanon expressed its “grave concern regarding the barely concealed threat by Israel that it is ‘committed to pursuing available and relevant options to protect its [so-called] sovereign rights.’ ” The government of Lebanon pronounced that it “will not hesitate to avail itself of its inherent right to self-defense if an armed attack occurs against the economic activities carried out in its maritime areas. It will not hesitate neither to take all appropriate measures”—a term of art in United Nations parlance meaning the use of force, up to and including armed force—“against Israel or its private concessionaires … should they decide to exploit … the natural resources of the Lebanese seabed by way of directional drilling.”
There are two principal means of resolving boundary disputes: through diplomatic means, or through recourse to an international dispute resolution tribunal.
As for diplomacy, the lack of direct diplomatic relations between Lebanon and Israel presents an obvious challenge. Efforts by the United States to mediate a solution, even a temporary one, have not, to date, borne fruit. These include the proposal by State Department envoy Fredrick Hof in December 2012 of a line (the “Hof Line”) that would “vest” ownership of 60 percent of the disputed wedge in Lebanon, thus freeing it to begin exploitive activities in the majority of the zone, while leaving for further diplomatic resolution the status of the remaining 40 percent. This proposal was revived in 2018 by David Satterfield, the acting U.S. assistant secretary of state for Near Eastern affairs, who has engaged in shuttle diplomacy between the two countries in an effort to mediate the crisis. Satterfield’s proposal was reportedly characterized as “unacceptable” by Lebanese Parliament Speaker Nabih Berri. The U.S. embassy in Lebanon reports that Satterfield “continues to engage” on regional issues and on helping Lebanon develop its resources in agreement with its neighbors. (Multiple attempts to contact both nations’ embassies for comment went unanswered.)
In view of the extraordinary challenges that exist in “solving” this boundary line dispute, another means of diplomatic resolution, that of a joint development agreement (JDA), might be the best option. Under such an agreement, the parties effectively shelve, or obviate the need for, resolution of a dispute by agreeing to work around it by cooperatively and jointly exploiting the resources and sharing in the resultant windfall. In the Asia-Pacific region, this model has been effectively utilized through agreements between Malaysia and Thailand (1979); Cambodia and Vietnam (1982); Malaysia and Vietnam (1992); Cambodia and Thailand (2001); Malaysia and Brunei (2009); China and Vietnam (2000); Japan and South Korea (1974); Japan and China (2008); Australia and Indonesia (1989); and Australia and East Timor (2002). Even in the South China Sea, uncomfortable neighbors China and Vietnam have agreed on the delimitation of the northern part of the Gulf of Tonkin, and to establish a joint fishing regime in that area. Some sort of JDA between Lebanon and Israel could provide for a win-win resolution that avoids the need to conclusively “solve” the boundary-line issue.
If diplomatic efforts were to prove fruitless, the dispute could be submitted to an international dispute resolution tribunal. Tribunal options include the International Court of Justice, or some form of arbitral tribunal; the International Tribunal for the Law of the Sea, formed by UNCLOS, would be unavailable, since Israel is not a state party. Under the international system, both sides would have to agree to resort to the chosen adjudicative forum; there is no means under international law of forcing another nation to submit a dispute for adjudication. Were both sides to agree to adjudicate the dispute, the selected tribunal would apply the law of maritime boundary delimitation to reach an equitable solution.
UNCLOS Article 15 provides that, in the absence of special circumstances or agreement to the contrary, the territorial sea boundary between adjacent states such as Lebanon and Israel is to be “the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two states is measured.” As for the EEZ, Article 74 rather unhelpfully prescribes that boundary delimitation is to be based on international law “in order to achieve an equitable solution.”
UNCLOS’s sparseness with respect to the law of maritime-boundary delimitation is not the product of carelessness of its drafters, nor reflective of a judgment that legal guidance in this area is not important. Rather, it is a recognition of, and deferral to, a rich body of law in this realm that had emanated from various adjudicative forums by the time of UNCLOS’s drafting, and that has continued to evolve since. This law was refined and applied as recently as Feb. 2, 2018, when the International Court of Justice (ICJ) announced its decision in Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua). The principles enunciated and utilized by that tribunal will be summarized here, as these same principles would likely be applied by any adjudicative forum concerning itself with the Israel-Lebanon maritime boundary.
As to the territorial sea, in accordance with established jurisprudence, the tribunal would proceed in two stages: First, it would draw a provisional median (equidistance) line; then second, it would consider whether any special circumstances exist which justify adjusting such a line. In constructing the provisional median line, the court would select base points on the coast from which the equidistance lines are to be drawn. For this, the court would select as base points “salient points” on the natural coast, which may include points placed on islands or rocks, that are situated on solid land and thus have a relatively higher stability than points placed on sandy features. Special circumstances that may warrant adjustment of the provisional median line include such things as an unstable coastline, the presence of offshore islands or rocks, disproportionality in the size of the respective coastlines relevant to the boundary delimitation, concavities in the coast that would produce a cutoff effect, and the like. In the Costa Rica-Nicaragua case, the ICJ considered a special circumstance to be the “high instability and narrowness of the sandspit near the mouth of the San Juan River, which constitutes a barrier between the Caribbean Sea and a sizable territory appertaining to Nicaragua,” which “does not allow one to select a base point on that part of Costa Rica’s territory … or to connect a point on the sandspit to the fixed point at sea for the first part of the delimitation line.” As a result of this, the court selected a point on the provisional equidistance line 2 NM from the coast, and from there drew the delimitation line “landwards to the point on the low-water mark of the coast of the Caribbean Sea that is closest to point Pv.” This is depicted on the court’s adjusted median line, as depicted below:
As to delimitation of the EEZ, the tribunal would first identify and assess several factors: (1) the “relevant coasts;” that is, those areas of the respective coastlines that “generate projections which overlap with projections from the coast of the other party;” (2) the “relevant area,” i.e., that part of the maritime space in which the potential entitlements of the parties overlap;” and (3) the effect of bilateral treaties and judgments involving third states. This latter consideration would impact any Israel-Lebanon delimitation, as the bilateral agreements with Cyprus would limit the seaward extent of both Lebanon’s and Israel’s EEZs.
Once these factors are accounted for, the tribunal would then proceed toward an “equitable solution” in three stages. First, it would draw a provisional equidistance line that begins at the outer point of the territorial-sea delimitation line. Next, it would consider whether there exist relevant circumstances that are capable of justifying an adjustment of the equidistance line as provisionally drawn. Finally, it would assess the overall equitableness of the boundary resulting from the first two stages by checking whether there exists a marked disproportionality between the length of the parties’ relevant coasts and the maritime areas found to appertain to them. By applying these principles, the ICJ in the Costa Rica-Nicaragua case adjudged the EEZ boundary between those two nations, beginning at point Lx (the outer edge of the territorial sea boundary), to be as depicted below (note—from point V, the delimitation line continues along the geodetic line starting at an azimuth of 77° 49’ 08”):
Whose Claim Is Best?
In the abstract, putting aside rhetoric, politics, grievances, and ancient enmities, whose version of the maritime boundary is more correct, Israel’s or Lebanon’s? In the estimation of this author, Lebanon’s claim is both legally and “morally” superior to Israel’s, as further explained below.
First of all, all parties involved in this boundary dispute acknowledge equidistance as the overriding consideration in boundary delimitations. Cyprus has done so in its domestic legislation declaring an EEZ in 2004, in its published boundary delimitation agreements with Egypt and Israel, and, as evidenced by its public statements, in its EEZ delimitation agreement with Lebanon. Lebanon has done so in its agreement with Cyprus (as evidenced by public statements made by both parties), and by its reference to the “median line” in its list of coordinates of its claimed EEZ boundaries with Syria, Israel, and Cyprus in Decree No. 6433. Points 1 through 12 of the Israel-Cyprus delimitation agreement of 2010 are specifically identified as those that define “the median line between the government of the State of Israel and the government of the Republic of Cyprus.” Israel and Jordan based their 1996 maritime-boundary-delimitation agreement in the Gulf of Aqaba on the “median line of the Gulf.” In short, equidistance/median line appears to be the accepted delimitation methodology of all parties to maritime boundaries generally, and in the case of Lebanon, to the particular disputed boundary at issue.
Secondly, there do not seem to be any significant relevant or special circumstances that would justify a departure from reliance on equidistance as the governing delimitation principle. The coastlines of Lebanon (~139 miles) and Israel (~168 miles) are sufficiently similar so as to foreclose the need for an equidistance-line adjustment due to concerns of disproportionality. Neither Israel nor Lebanon have large islands or other offshore features that would complicate the delimitation. The relevant coastlines are relatively straight and stable. In short, at least in terms of physical features, the Lebanon-Israel boundary is on the less-complicated end of the boundary dispute spectrum, and thus less warranting of considerations of special circumstances warranting deviation from equidistance as the governing delimitation principle. A related conclusion is that the relative lack of complexity suggests that reliance on an equidistance tripoint would not lead to an inequitable result.
Assuming, then, that equidistance is accepted as the governing legal standard, only one claim, that of Lebanon, purports to base its claim on the tripoint that is equidistant from Cyprus, Israel, and Lebanon. Lebanon claims it as such in its Decree No. 6433, and in its June 20, 2011 submission to the United Nations (Point 23 is “equidistant between the three countries concerned”).
In contrast, Israel, in its “List of Geographical Coordinates for the Delimitation of the Northern Limit of the Territorial Sea and Exclusive Economic Zone of the State of Israel” submitted by Israel to the United Nations on July 12, 2011, states that “Point 1 above is derived from the Agreement Between the State of Israel and the Republic of Cyprus on the Delimitation of the Exclusive Economic Zone, dated Dec. 17, 2010.” So, in short, Israel does not tie the terminus of its claimed maritime boundary with Lebanon to any principle of law; rather, it ties it to a point in the Cyprus-Lebanon agreement.
Of course, just because Lebanon claims Point 23 to be the tripoint equidistant from Cyprus, Israel, and Lebanon does not make it so. But there is evidence that that claim is backed up by some intellectual rigor. Specifically, in its July 14, 2010 submission to the United Nations—which, incidentally, claimed Point 23 as the southernmost point of the “southern limit of Lebanon’s EEZ”—Lebanon provided details about the methodology it used to arrive at that point. That submission indicated:
¶ The land origin of the delimitation line, which derived from the Paulet-Newcombe agreement of 3 February 1922, which entered into force on 10 March 1923, delimiting the southern border of Lebanon from Ra’s Naqurah at Point 1B;
¶ That Lebanon referenced the U.N.-published Handbook on the Delimitation of Maritime Boundaries in its delimitation;
¶ That the baseline Lebanon utilized for its southern coast in making the delimitation used admiralty nautical chart No. 2634 (Beirut to Gaza, 1:300,000) produced by the United Kingdom Hydrographic Office; admiralty nautical chart No. 183 (Ra’s at Tin to Iskenderun, 1:1,100,000) produced by the United Kingdom Hydrographic Office; and Chart B-1 (area of Naqurah, 1:20,000) produced by the Office of Geographic Affairs, Lebanese Armed Forces Command, updated in June 2004 on the basis of aerial photographs taken in 2001-2002;
¶ That using that baseline, and with reference to the provisions of the United Nations Convention on the Law of the Sea, the southern limit of Lebanon’s exclusive economic zone was determined as the median line every point of which is equidistant from the nearest point on the baselines of Lebanon and the neighboring state; and
¶ That the southern limit of Lebanon’s exclusive economic zone was then plotted on admiralty nautical chart No. 183, and a list of its coordinates was compiled and submitted.
According to Lebanese sources, the delimitation process was assessed in September 2011 by the United Kingdom Hydrographic Office, which confirmed the geographic coordinates and charts submitted by Lebanon. Also, according to Lebanon, in March 2011, Israel was provided (through the United Nations Interim Force in Lebanon) a report of the Lebanese process by which it arrived at its claimed southern EEZ; and thus, presumably, Israel has had the opportunity to review and, as warranted, refute Lebanon’s methodology. No such refutation seems to have occurred.
If Point 23 represents the true equidistance tripoint, then what is Point 1? Lebanon claims, and Cypriot sources and independent commentators confirm, that Cyprus and Lebanon, in order to respect the rights of absent third parties (Israel and Syria), deliberately ended their agreed-upon mutual delimitation line at points short of both the actual northern and southern tripoints, claimed by Lebanon to be Points 7 and 23, respectively. As such, as phrased by one commentator, the Lebanon-Cyprus delimitation agreement “determined the breadth of their respective EEZs, but not the width.” The southern point “short of … the actual … southern tripoint” in the delimitation agreement is, of course, Point 1.
Such a methodology—ending a bilaterally agreed-upon delimitation line short of an equidistance tripoint when the third party is not involved in the negotiation—is endorsed by the U.N.’s Handbook on the Delimitation of Maritime Boundaries, and has been used in actual state practice, as evidenced by the 1974 continental shelf-delimitation agreement between Spain and Italy that deliberately stopped short of the tripoint with France to the north, and Algeria to the south (see depiction below). That all parties recognize Cyprus’ and Lebanon’s intent is reflected by the statements in both the Lebanon-Cyprus and the Israel-Cyprus agreements to the effect that Point 1—which would more accurately have been stated as “the equidistance tripoint”—was subject to future determination and agreement.
In conclusion, it appears that Lebanon may have committed a strategic blunder by entering into an agreement with Cyprus that accounted for the interest of absent third parties by defining the southern and northern endpoints of the agreed-upon EEZ boundary between Cyprus and Lebanon by points that were not the southern and northern tripoints. Bilateral agreements between states that define a boundary all the way to the tripoint involving an absent neighbor are common and uncontroversial, and thus could—and probably should, in Lebanon’s retroactive calculus—have been used by Cyprus and Lebanon; for example, the 1978 Colombia-Dominican Republic boundary delimitation agreement utilized as its western terminus the equidistance tripoint with Haiti, and Haiti later agreed to a boundary delimitation with Colombia that utilized the same tripoint terminus. By failing to do so in this case, Lebanon left an opening for Israel to do just what it has done in this case, which is to utilize the very same point Lebanon agreed to as the southern terminus of its agreed-upon maritime boundary with Cyprus as the northern terminus of its shared EEZ boundary with Cyprus. And with Point 1 being the mutually agreed-upon terminus, Israel can plausibly argue, how can Lebanon then complain about Israel’s use of it as the terminus of its claimed maritime boundary with Lebanon?
There is some fogginess here to be sure. Nonpublication of the Cyprus-Lebanon agreement hampers independent review of the intent behind adoption and utilization of Point 1, Lebanon has not published its methodology for arriving at Point 23 as the equidistance tripoint, and Lebanon provides some doubt as to the conclusiveness of its position by the rather nebulous statement in its July 14, 2010 submission that “[t]here is a need to conduct a detailed survey, using a global positioning system, of the shore contiguous to the southern limit, including all islands and spurs, with a view to updating the nautical charts and the baseline accordingly in the future.” However, unless and until there is fact- and evidence-based refutation of Lebanon’s methodology for determining Point 23 as the true equidistant tripoint, or a serious, supported claim by Israel that Point 1 is the true equidistant tripoint and not, as claimed by Lebanon in its June 20, 2011 submission to the U.N., simply “just one point like any of the others” on the line separating Cyprus’ maritime claim in the west from Israel’s and Lebanon’s to the east, only one nation, Lebanon, can reasonably claim, with fair support, that its declared boundary line comports with international law.
This article is part of a Tablet series on the consequences of The Six-Day War, which began on June 5, 1967.