Israel's Government Can Sign Lebanon Deal During Election Campaign, Legal Counsel Says

Israel's Attorney General Gali Baharav-Miara also believes that no referendum will be necessary to authorize the maritime border with Lebanon, despite 2014 law

Jonathan Lis
Jonathan Lis
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London-based Energean's drill ship begins drilling at the Karish natural gas field offshore Israel in the east Mediterranean, in May.
London-based Energean's drill ship begins drilling at the Karish natural gas field offshore Israel in the east Mediterranean, in May.Credit: ARI RABINOVITCH/ REUTERS
Jonathan Lis
Jonathan Lis

The attorney general said on Wednesday that she will defend the interim government's right to sign an agreement delineating Israel’s maritime border with Lebanon at the Supreme Court, a senior Israeli official said.

According to the official, Attorney General Gali Baharav-Miara said that the pending deal will only need to be presented to the public after its approval, as it requires authorization from the security cabinet rather than the Knesset. It will also not be subject to referendum.

Baharav-Miara has not issued a written recommendation on the matter, but gave her opinion at two meetings: A cabinet meeting and another between security establishment figures and Prime Minister Yair Lapid.

Another senior official told Haaretz that “The question of approving the agreement and the need for a referendum is a complex legal one. The court can accept the government’s position … but the judges can also decide otherwise."

Prime Minister Yair Lapid said on Wednesday that negotiations between Israel and Lebanon regarding the maritime border may lead to an agreement soon.

“As for Lebanon, we’re in the midst of very complex and advanced negotiations,” Lapid said in a briefing to Israeli reporters accompanying him in New York.

“I gave our negotiating teams very clear parameters, in coordination with the Defense Minister, [regarding] where our needs are in terms of security, diplomacy, and economics. If we achieve it while maintaining these parameters – good. If not – Israel is strong and can defend itself. I continue to use the term 'cautious optimism.'”

It begs to question whether the interim government headed by Lapid, which doesn't have the Knesset's confidence, can make decisions on changing the country's border two months before the election. The second question is whether the approval of the agreement will be subject to a plebiscite.

In 2014, the Knesset passed Basic Law: Plebiscite, which states that any diplomatic agreement which includes the relinquishing of territories where Israeli “Law, jurisdiction and administration” apply shall be subject to a plebiscite, unless passed by the Knesset with a majority of 80 members or more.

The law was passed in order to make it harder for future governments to change the status of Jerusalem, the Golan Heights, or to make border corrections through swaps of territories under Israeli sovereignty as part of a diplomatic agreement. This law does not apply to the West Bank, which is under martial law.

On Tuesday, opposition leader Benjamin Netanyahu claimed in a video disseminated on social media that Lapid had decided not to operate the Karish gas rig due to Nasrallah’s threats – and that he intends to hand the rig over to Lebanon with no oversight.

Lapid responded to these comments on Wednesday, saying: “Netanyahu’s statement is terribly irresponsible. He is harming Israel’s negotiations, harming our security, diplomatic, and economic interests.” Lapid added that: “A complex negotiation is taking place in America. He doesn’t know the details because he hasn’t received a security briefing.”

Kohelet Forum takes steps

The Kohelet Forum, a think tank for Israel's political right, has already began taking steps to ensure that the approval of the agreement with Lebanon is subject to a plebiscite. The forum petitioned the High Court of Justice to issue an injunction ordering the state not to sign or approve any agreement including a cession of seabed territory until a decision is made whether such an agreement requires a plebiscite or not.

The Forum’s argument relies on the fact that another law, the “Underwater Territories Law,” states that “The territory of the State of Israel shall include the seabed and the subterranean strata of submarine areas off Israel’s shores, which are outside the territorial waters, until where the water depth above them allows for the extraction of minerals in these waters.”

Three Israeli international law experts refute this argument, arguing that that Underwater Territories Law does not apply "law, jurisdiction, and administration" to maritime territories, but rather refers to them as "state territories." The term 'state territories,' they claim, is less binding.

The law, they say, states that Israeli territory includes subterranean maritime territories “until where the water depth above them allows for the extraction of minerals in these waters,” whereas the Golan Heights Law explicitly specifies that Israeli law, jurisdiction, and administration apply to the area.

The experts believe that a superficial interpretation of the Underwater Territories Law could lead to absurd conclusions about what is considered Israeli territory.

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