Matter commented on: Declaration of the State of Palestine regarding its Maritime Boundaries in accordance with the United Nations Convention on the Law of the Sea, September 24, 2019
Introduction On 24 September 2019, the State of Palestine transmitted to the United Nations a Declaration whereby it promulgates its maritime assertions under the 1982 UN Convention on the Law of the Sea (‘LOSC’) including tables of coordinates and a map depicting its claimed maritime area. It is worth recalling that following its accession to the LOSC the State of Palestine sent a similar declaration to the UN in 2015, albeit without coordinates and map. Notably, a short while ago an article outlined Palestine’s strategy aiming at both promoting and safeguarding the latter’s rights over the sea waters adjacent to Gaza. This post comments on the latest Declaration by the State of Palestine and highlights certain noteworthy aspects of it.
The content of the Declaration By virtue of this Declaration the State of Palestine asserts a twelve nm territorial sea measured from the low-water line and a twenty-four nm contiguous zone. Palestine also claims rights over a 200 nm continental shelf and EEZ, while it holds the position that delimitation of its purported maritime space should be effected according to ‘equity and the principles of international law’. The State of Palestine’s determination to safeguard its sovereign rights over the waters washing the coasts of Gaza is aptly illustrated in the Final Provisions of the said Declaration, whereby the Palestinian government urges foreign companies not to perform any activities in the alleged maritime zones of Palestine without permission from the Palestinian administration and reserves its right to seek compensation in the event of exploitation of its natural resources. Lastly, the Declaration includes six tables of coordinates determining respectively: 1) the baselines from which all maritime zones are measured, 2) the outer limit of the territorial sea, 3) the outer limit of the contiguous zone , 4) the outer limit of the continental shelf/EEZ, 5) the southern limit of its maritime zones, and 6) the northern limit of its maritime zones, as well as a map of its claimed maritime space (reproduced below).
Commentary A significant point bearing upon the capacity of Palestine to have maritime zones is whether the particular entity is a state. Undoubtedly, the Palestinians do have the right to self-determination and Palestine appears to fulfil the criteria for statehood (defined territory, permanent population, government, capacity to enter into relations with other states), while the UN has recognised it as a non-member observer state. Be that as it may, the matter of Palestine’s statehood is still a controversial one given that Palestine has yet to achieve full UN membership, while it lacks independence since Israel still influences and controls several aspects of Palestinian affairs. Of course, according to the customary principle of permanent sovereignty over natural resources, which is a feature of self-determination, the Palestinian people have inalienable rights over the natural resources offshore Gaza (both living and non-living). Irrespective of the statehood question, it is argued that Palestine does not have the capacity to declare maritime zones offshore Gaza because these matters are currently addressed by the legal framework agreed between the Palestine Liberation Organization and Israel, which also governs the conduct of maritime activities (including fishing and probably hydrocarbon exploration/exploitation). By virtue of those arrangements, Israel recognised the jurisdiction of the Palestinians over the waters lying off the Gaza Strip up to a breadth of twenty nm, while these waters were divided into three Maritime Activity Zones (K, L, M) of which only Zone L would be open for fishing, recreation and economic activities (map reproduced below). Hence, Palestine cannot claim anything more than a twenty nm belt where it can exercise certain circumscribed rights. Besides, the fact that Israel has been adjusting the breadth of the said maritime space limiting activities in there at will demonstrates a lack of control on the part of Palestine and hardly evinces that the latter is a sovereign state capable of claiming full-fledged maritime zones. Therefore, the following comments are made in light of the fact that Palestine’s unilateral claims are not opposable to any state at the moment.
With respect to the contiguous zone the State of Palestine seeks to ‘prevent and penalize violations of international law and of Palestinian laws and regulations within those zones’. It is recalled that the contiguous zone concept endows states with the right to exercise control so as to prevent or punish violation of specific laws, namely customs, fiscal, immigration and sanitary legislation within its territory (Article 33 LOSC). It follows that on this point the Declaration endeavours to widen the scope of Palestine’s competence in a future contiguous zone rendering such claim inconsistent with the LOSC and customary international law. It is worth mentioning that several Arab states have long asserted the right to apply laws beyond the four categories outlined in Article 33 LOSC in the contiguous zone.
Concerning its EEZ claims it should be pointed out that Palestine subjects to reciprocity its ‘due regard’ obligations in respect of third states’ rights in the EEZ. This qualification contravenes Article 56(2) LOSC, which does not consider reciprocity as a precondition for observing the duty of ‘due regard’. In terms of maritime delimitation the State of Palestine supports the application of ‘equity and principles of international law’ (equitable principles). This position stems from the fact that Gaza’s coast is concave, thus the use of a strict equidistance line in any future delimitations with Israel and Egypt would result in Palestine’s coast being ‘sandwiched’ between Israel and Egypt’s shores (a situation reminiscent of the 1969 North Sea Continental Shelf cases). It is also interesting to note that in the Eastern Mediterranean Sea only Palestine and Turkey advocate the use of equitable principles in maritime delimitation, whereas Israel, Lebanon, Egypt, and Cyprus favour the median/equidistance line, as reflected in the three delimitation agreements signed in the region so far (2003 Egypt-Cyprus; 2007 Lebanon-Cyprus (not ratified by Lebanon); 2010 Israel-Cyprus). At any rate, the regional practice advocating the median/equidistance line does not make this method obligatory for all regional states.
On any account, in order to establish a definitive boundary it is indispensable for the interested states to conclude a delimitation agreement. That is because a maritime boundary defined unilaterally is not opposable vis-à-vis any other state (1951 Fisheries case). Consequently, in order to delimit its maritime zones Palestine needs to negotiate delimitation agreements with Egypt and Israel. What is more, the map attached to the Declaration shows that as a result of the application of equitable principles in maritime delimitation the State of Palestine may have to reach a boundary delimitation with Cyprus as well. Something like that would entail an adjustment of the Israel-Cyprus and Egypt-Cyprus EEZ boundaries. Nonetheless, such an eventuality will have to be addressed only after Palestine has delimited its future maritime zones with Israel and Egypt.
In respect of the involvement of foreign companies in hydrocarbon activities offshore, Palestine is entitled to draw their attention to the Palestinian people’s rights over their natural resources. Besides, according to the pertinent international humanitarian law rules concerning belligerent occupation, Israel cannot exploit Palestine’s natural resources (see also CJEU jurisprudence in Brita and Western Sahara cases). Therefore, the State of Palestine has the right to claim compensation in the event of exploitation of its natural resources. Finally, as mentioned at the outset, Palestine has carved out a general maritime strategy including, among others, recourse to international dispute settlement mechanisms against Israel. Nevertheless, given that Israel does not accept the ICJ’s compulsory jurisdiction nor is it a party to the LOSC, in principle there is no jurisdictional basis for filing a case either to the ICJ or the ITLOS/Annex VII LOSC arbitration. Opening a case against Israel would only be possible on the basis of a special agreement or on Israel’s consent in a forum prorogatum procedure (which is highly unlikely). Another possible jurisdictional hurdle relates to the fact that it is not clear whether Palestine has locus standi in the ICJ (albeit it might be eligible to appear before the ITLOS following the signing of a special agreement with Israel). Palestine may also file a case before an Annex VII LOSC arbitral tribunal with a view to pursuing maritime delimitation with Egypt or sign a special agreement with the latter so as to bring a case to the ITLOS (Egypt is a party to the LOSC and has opted for Annex VII arbitration concerning dispute resolution).
Concluding remarks The participation of the State of Palestine in and its willingness to act in conformity with the LOSC is a welcome development. Notwithstanding the fact that it is a state in statu nascendi and its people have legitimate rights over the natural resources offshore Gaza, it is still not clear whether Palestine has acquired statehood. In any case, Palestine’s unilateral claims are not opposable against any other state since they cannot supersede the PLO-Israel agreement on the regime of the waters adjacent to the Gaza Strip. Moreover, Palestine’s position on the contiguous zone is not in compliance with the LOSC and customary law. Further, although its views on maritime delimitation in favour of equitable principles deviate from the regional practice in the Eastern Mediterranean Sea, this is totally legitimate. It should also be stressed that until Palestine signs delimitation agreements with its neighbours, the rights of the Palestinian people over offshore natural resources need to be safeguarded. Lastly, there is no head of jurisdiction upon which the State of Palestine can base a potential recourse either to the ICJ or the ITLOS/Annex VII LOSC arbitration, unless Palestine strikes a special agreement with Israel or the latter provides its consent (forum prorogatum). On the other hand, Palestine may initiate Annex VII LOSC arbitration or pen a special agreement referring maritime delimitation with Egypt to the ITLOS.
Maritime area claimed by the State of Palestine
Maritime Activity Zones off the Gaza Strip
This post may be cited as: Nicholas, A. Ioannides,“Palestine Takes to the Sea: a Commentary on Palestine’s Declaration concerning its Maritime Claims” (11.20. 2019 on-line pdf:NCLOS Blog 20.11.2019 Ioannides Palestine maritime claims)
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