Spring 2023 No.69 הארגון הבינלאומי של עורכי-דין ומשפטנים יהודים (ע״ר) In this issue Israel-Lebanon Maritime Delimitation Agreement Request for ICJ Advisory Opinion Restitution of Property Stolen by the Nazis Revisiting the Definition of Genocide New NY Law Requiring Museums to Display Information on Nazi Art Looting
The International Association of Jewish Lawyers and Jurists Honorary President: Judge Hadassa Ben-Itto z”l (Israel) President Emeritus: Irit Kohn (Israel) Lifetime Member: Irwin Cotler, Prof. (Canada) Honorary Vice Presidents: Oreste Bisazza Terracini, Dr. (Italy), Joseph Roubache z”l (France) Executive Committee President Meir Linzen (Israel) Deputy President Daniel Reisner (Israel) Vice President and Coordinator for International Organizations Pnina Sharvit Baruch (Israel) Vice President and Secretary General Rachel Levitan (Israel) Vice President and Treasurer Avraham (Avi) Doron (Israel) Vice Presidents Robert Garson (USA) Marcos Arnoldo Grabivker (Argentina) Maurizio Ruben (Italy) Head of the Legal Center for Combating Antisemitism Avraham Yishai (Israel) International Organizations Advisor Ido Rosenzweig (Israel) Representatives to the U.N. in Geneva (UNOG) Pnina Sharvit Baruch (Israel) Ido Rosenzweig (Israel) Representatives to U.N. Headquarters in New York Pnina Sharvit Baruch (Israel) Ido Rosenzweig (Israel) Regina Tapoohi (USA) Richard Horowitz (USA) Mark Speiser (USA) Representative to the European Parliament Pascal Markowicz (France) Meir Linzen (Israel) Daniel Reisner (Israel) Pnina Sharvit Baruch (Israel) Rachel Levitan (Israel) Avraham (Avi) Doron (Israel) Robert Garson (USA) Marcos Arnoldo Grabivker (Argentina) Maurizio Ruben (Italy) Julia Andras (Austria) Mirella Bamberger (Israel) David Benjamin (Israel) Daniel Benko (Croatia) Sarah B. Biser (USA) Jimena Bronfman (Chile) Maria Canals De-Cediel, Dr. (Switzerland) Jacques Cohen (France) Jonathan David (Israel) Noemi Gal-Or, Dr. (Canada) Nathan Gelbart (Germany) Ronit Gidron-Zemach (Israel) Aleksandra Gliszczynska-Grabias (Poland) Stephen R. Greenwald (USA) Richard Horowitz (USA) Edna Kaplan-Hagler, Judge (Ret.) Dr. (Israel) Baruch Katzman (Israel) Michael Kempinski (Israel) Irit Kohn (Israel) Alyza D. Lewin (USA) Jonathan Lux (UK) Jeremy D. Margolis (USA) Pascal Markowicz (France) Calev Myers (Israel) Olaf Ossmann (Switzerland) David Pardes (Belgium) Ruben Pescara (Italy) Dan Roskis (France) Stephen C. Rothman, Judge (Australia) Alan Sacks (Israel) Carlos Schlesinger (Brazil) Amos Shapira, Prof. (Israel) Isaac (Tzachi) Shragay (Israel) Ethia Simha (Israel) Dalia Tal (Israel) Regina Tapoohi (USA) Daniel Taub (Israel) Michael H. Traison (USA) Axel Freiherr von dem Bussche, Dr. (Germany) Suzanne Wolfe-Martin (Malta) Avraham Yishai (Israel) Board of Governors All members of the Executive Committee are members of the Board of Governors.
Spring 2023 1 JUSTICE is published by The International Association of Jewish Lawyers and Jurists (IJL) 10 Daniel Frisch St. Tel Aviv 6473111, Israel Tel: +972 3 691 0673 Fax: +972 3 695 3855 office@ijl.org www.ijl.org © Copyright 2023 by IJL ISSN 0793-176X JUSTICE is published for members and friends of the International Association of Jewish Lawyers and Jurists. Opinions expressed in JUSTICE are those of their authors and do not necessarily reflect the views of JUSTICE or the International Association of Jewish Lawyers and Jurists. The accuracy of articles appearing in JUSTICE is the sole responsibility of their authors. Articles in English are welcome but should be preceded by a query to the IJL Advisory Board at office@ijl.org. Back issues of JUSTICE are available at www.ijl.org. JUSTICE No. 69, Spring 2023 Editor Mala Tabory, Dr. Special Advisor Irit Kohn, Adv. Advisory Editor Alan D. Stephens Academic Advisory Board Michael Bazyler, Prof. Noemi Gal-Or, Dr. Oren Gross, Prof. Moshe Hirsch, Prof. Deborah Housen-Couriel, Adv. Robert Katz, Prof. Michla Pomerance, Prof. Arie Reich, Prof. Nicholas Rostow, Prof. Robbie Sabel, Prof. Amos Shapira, Prof. Malcolm N. Shaw, Prof. Joseph H. Weiler, Prof. Legal Editorial Staff Gavriella Lazarus Shani Birenbaum Jennifer Farrell, Esq. Liora Chartouni David Gavriel (Andrew) Groszmann, Adv. Graphic Design Climax Design Studio Ltd. www.climax-design.co.il | 03-7516747 Cover Photo Credit With Courtesy of The Survey Of Israel Contents President’s Message Meir Linzen 2 Articles Challenges Concerning the Maritime Delimitation Agreement between Israel and Lebanon: Israeli Law and International Law Perspectives Shani Friedman 3 Request for ICJ Advisory Opinion Robbie Sabel 10 Failure to Enact Restitution Laws for Property Stolen by the Nazis and their Collaborators Lord Eric Pickles 12 Antisemitism: A Fresh Look Yehuda Bauer 16 Genocide in International Law: Revisiting the Definition of Genocide in the Convention on the Prevention and Punishment of the Crime of Genocide (1948) Hilly Moodrick-Even Khen 19 New York Law on Display of Information about Nazi-Displaced Art Promotes Understanding but Raises Questions Nicholas M. O’Donnell 25 The Federal Republic of Germany’s Creation of Compensation Laws for Nazi Wrongdoing Avraham Weber 29 25 Years of the Washington Principles on Nazi-Confiscated Art Olaf S. Ossmann 36 Farah Maraqa Case Steffen Kaemper 44 Book Reviews International Law and the Arab-Israeli Conflict By Robbie Sabel Reviewed by Nicholas Rostow 46 Antisemitism on Social Media By Monika Hübscher and Sabine von Mering Reviewed by Lev Topor 48 Land Law and Policy in Israel: A Prism of Identity By Haim Sandberg Reviewed by Havatzelet Yahel 52
2 No. 69 JUSTICE s I write these lines, the State of Israel is marking its 75th anniversary. The creation of the State of Israel was nothing short of a miracle. For 2,000 years, since being exiled from its Homeland, the Jewish people have suffered unparalleled persecution, which reached its climax in the Shoah (the Holocaust) in which 6 million Jews were murdered by the Nazis and their collaborators. No lesser miracle has been the success of the State of Israel during the last 75 years, a story of the ingathering of the Jewish people from around the world, and a series of achievements in the areas of science and technology, economic development and culture that are among the greatest in the world. A few weeks ago, I participated in the events marking the 80th anniversary of the Warsaw Ghetto uprising. My late mother, Ita Linzen (née Wiseman), like my children's maternal grandmother Yenina Bard (née Bergzam – may she continue to enjoy many more healthy years), survived the Warsaw Ghetto and the Shoah. The comparison could not be more startling between the depths of suffering of our people 80 years ago and the establishment of the sovereign State of Israel in the historical homeland of the Jewish people. Today the Jewish people (even those living in the Diaspora) have the strong support of the State of Israel, the State of the Jewish people. Yet Israeli society is deeply divided. Jews against nonJews, religious against secular, Ashkenazi against Sephardi. These divisions are compounded by a deep political divide between Right and Left, which reached its climax in recent months in light of the initiative of the Government and the ruling coalition to bring about fundamental changes to the judicial system in Israel. This latest issue has brought the masses out into the streets, week after week, for many months. We, as an Organization that champions human rights, support the buttressing of democracy in the State of Israel, the independence of the judiciary, and the protection of rights of the individual citizen. Without wavering from these principles, we nevertheless believe that the only way to solve the current disagreement is through dialogue between the feuding parties. Therefore we welcome and support the dialogue that is taking place under the auspices of President Isaac Herzog. We must never forget that with all the problems that are affecting Israeli society at this time, the external threat to the State of Israel and to Jewish people around the world has not diminished. We have witnessed an upsurge in antisemitic acts, and we are particularly disturbed by the increase of antisemitic activity in the U.S., the intensifying efforts to delegitimize the State of Israel (see, for example, the recent application to the ICJ on behalf of the United Nations in the matter of the “Continuing Occupation”), and of course the physical threats in the form of increased terror activity both within Israel and from external enemies, especially Iran. Our Organization is firm in its resolve to fight with all the means available to it (primarily legal means) in all types of forums. We act in the courts of the relevant jurisdictions, in the courts of the European Union and in the international courts at the Hague. As long as there are legal means to meet any of these challenges, the IJL will find ways to meet these challenges. That is our raison d'être. June 23, 2023 President’s Message A Meir Linzen Photo: Ami Erlich
3 Spring 2023 ntroduction On October 11, 2022, Lebanon and Israel reached an agreement to delimit their maritime zones, specifically the territorial sea and Exclusive Economic Zones (EEZ), and utilize marine resources in the Eastern Mediterranean Sea (the agreement).1 The legal instrument that governs this agreement is the 1982 UN Convention on the Law of the Sea (UNCLOS).2 While Israel is not a party to the Convention,3 it is considered as customary international law, which obligates all states.4 This is a unique agreement since the parties do not have diplomatic relations. The agreement was reached through a mediation process led by the United States and concluded as dual MOUs between Israel and the United States and between Lebanon and the United States.5 Despite the unique form of the agreement(s), it can still be considered an international treaty governed by international law in accordance with the Vienna Convention on the Law of Treaties (VCLT).6 In addition, it is the first maritime delimitation agreement between adjacent states in the Eastern Mediterranean. Other delimitation agreements were between opposite states, for example Greece–Egypt,7 Cyprus-Egypt,8 Cyprus-Israel,9 and Cyprus-Lebanon.10 This article examines the maritime agreement between Israel and Lebanon and its compliance with Israeli law and international law, and specifically the Law of the Sea (LOS), while highlighting some challenges and issues that did not receive much attention during the negotiations and the public discussion concerning the agreement. Compliance with Israeli Law The main challenge with respect to Israeli law is whether there is a requirement to conduct a referendum or obtain approval of a 2/3 majority of the Knesset prior to signing the agreement. If there is such a requirement, then Israel’s signature was without jurisdiction, breaching Israeli law. Israeli law obligates the government to secure approval through a referendum or by a majority of 80 members of the Knesset before signing or ratifying an agreement that states that the law, jurisdiction and administration of the State of Israel shall no longer apply to a territory in which Challenges Concerning the Maritime Delimitation Agreement between Israel and Lebanon: Israeli Law and International Law Perspectives I Shani Friedman 1. See press release, Israeli Ministry of Foreign Affairs website, available at https://www.gov.il/en/departments/news/ israel-and-lebanon-reach-historic-agreement-11-oct2022#:~:text=PM%20Lapid%3A%20This%20is%20 an,the%20maritime%20dispute%20with%20Lebanon 2. Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 (UNCLOS). 3. See list of parties, United Nations Treaty Collection (UNTC) website, available at https://treaties.un.org/pages/ ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI6&chapter=21&Temp=mtdsg3&clang=_en 4. See for example, Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment [1985], I.C.J Rep. 13, para. 34; Donald R. Rothwell and Tim Stephens, THE INTERNATIONAL LAW OF THE SEA 86-87 (2nd ed., 2016); D. P. O’Connell, THE INTERNATIONAL LAW OF THE SEA, Vol. 1, 476 (I. A. Sheare, ed., 1982). 5. Constantinos Yiallourides, Nicholas A. Ioannides and Roy Andrew Partain, “Some Observations on the Agreement between Lebanon and Israel on the Delimitation of the Exclusive Economic Zone,” EJIL:TALK! BLOG (Oct. 26, 2022), available at https://www.ejiltalk.org/some-observationson-the-agreement-between-lebanon-and-israel-on-thedelimitation-of-the-exclusive-economic-zone/. See also advisory opinion of Israeli Ministry of Justice, materials submitted for the Israeli government decision concerning the agreement (Hebrew), Knesset website (Oct. 2022), p. 23, para. 6, available at http://main.knesset.gov.il/ Activity/Documents/LebanonMBLAgreement.pdf 6. 1969 Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 (VCLT), Art. 2(1)(a); see also Yiallourides et al., supra note 5.
4 No. 69 JUSTICE they currently apply.11 There is a need to examine whether the maritime zones that are the subject of the agreement can be considered territory in which the law, jurisdiction and administration of the State of Israel apply and would no longer apply under the agreement. This article argues that the agreement does transfer part of Israel’s maritime zones to Lebanon. Israel’s position during the negotiations was that the boundary between Israel and Lebanon should follow “point 1” as submitted to the UN,12 while Lebanon argued for the boundary to follow “point 23.”13 The final agreement, from approximately 2.7 nautical miles (nm) (5 km) from the coast up to the boundary point with Cyprus,14 ultimately followed “point 23” in accordance with Lebanon’s claim.15 Hence, Israel waived its claim and agreed that most of the disputed area will be part of Lebanon’s maritime zones. Thus, there is a need to determine whether the disputed area can be considered as a territory in which the law, jurisdiction and administration of the State of Israel apply. The agreement delimits the territorial sea and the EEZ.16 The EEZ does not pose a problem, since it is not a territory under the sovereignty of Israel, but rather a zone where Israel has limited “sovereign rights” to explore, exploit, conserve and manage natural resources.17 In addition, Israel never applied its law, jurisdiction and administration in the EEZ. The only Israeli law that is relevant to maritime zones beyond the territorial sea is the Submarine Areas Law (5713-1953).18 The law only refers to the continental shelf (CS) and not to the EEZ.19 The language of the law does not indicate that Israel applies its laws and jurisdiction to the submarine areas; it only declares that Israel has such areas.20 Thus, transferring the disputed area from Israel’s EEZ to Lebanon’s EEZ does not require securing prior approval by referendum or through approval by 80 Knesset members. The agreement also transfers part of Israel’s territorial sea, between 2.7-12 nautical miles, to Lebanon.21 Unlike the EEZ, the territorial sea is under the sovereignty of the coastal state, here Israel. It is essentially an extension of the sovereignty over the land territory.22 However, Israel argued that the Basic Law: Referendum does not apply to the disputed maritime zone subject of the agreement, since there was no prior boundary between the parties and the 2011 deposit chart did not draw such a boundary, although this position addresses mostly the EEZ.23 While the basic law does not apply to the EEZ, as explained above, Israel’s arguments do not explain why it is not applicable to the territorial sea.24 The fact that most of the disputed area is part of the EEZ does not mean that Israel should ignore questions relating to the territorial sea. As discussed above, Israeli domestic law mostly does not specifically address Israel’s jurisdiction in its maritime zones. However, some scholars maintain that sovereignty means that an expressed statement that domestic laws apply in the territorial sea is not needed.25 Therefore, the territorial sea, which is under the sovereignty of the coastal states, is a territory in which Israeli law, jurisdiction and administration 7. Agreement between the Government of the Hellenic Republic and the Government of the Arab Republic of Egypt on the delimitation of the exclusive economic zone between the two countries, 6 August 2020, UN Treaty Collection website, available at https://treaties.un.org/ doc/Publication/UNTS/No%20Volume/56237/Part/I56237-080000028058a22f.pdf 8. Agreement between the Republic of Cyprus and the Arab Republic of Egypt on the Delimitation of the Exclusive Economic Zone, 17 February 2003, DOALOS website, available at https://www.un.org/Depts/los/ LEGISLATIONANDTREATIES/PDFFILES/TREATIES/ EGY-CYP2003EZ.pdf 9. Agreement between the Government of the State of Israel and the Government of the Republic of Cyprus on the Delimitation of the Exclusive Economic Zone, 17 December 2010, DOALOS website, available at https://www.un.org/ Depts/los/LEGISLATIONANDTREATIES/PDFFILES/ TREATIES/cyp_isr_eez_2010.pdf 10. See also Yiallourides et al., supra note 5. 11. Basic Law: Referendum (unofficial translation), Knesset website, available at https://main.knesset.gov.il/EN/ activity/Documents/BasicLawsPDF/BasicLawReferendum. pdf 12. See Annex 1, figure 1. See also Israel deposit of charts to the UN 2011, available at https://www.un.org/Depts/ los/LEGISLATIONANDTREATIES/PDFFILES/isr_eez_ northernlimit2011.pdf; see also advisory opinion of Israeli Ministry of Justice, materials submitted for the Israeli government decision, concerning the agreement, supra note 5, p. 34. 13. See Annex 1, figure 1. See also advisory opinion of Israeli Ministry of Justice, materials submitted for the Israeli government decision concerning the agreement, supra note 5, p. 34; letter dated 20 June 2011 from the Minister for Foreign Affairs and Emigrants of Lebanon, 20 June 2011, DOALOS website, available at https://www.un.org/ Depts/los/LEGISLATIONANDTREATIES/PDFFILES/ communications/lbn_re_cyp_isr_agreement2010.pdf 14. See Annex 1, figure 2. See also advisory opinion of Israeli Ministry of Justice, materials submitted for the Israeli government decision concerning the agreement, supra note 5, pp. 37-38.
5 Spring 2023 apply, and any waiver of such areas requires prior approval by referendum or a majority of 80 Knesset members. There are scholars who argue that the Israeli Basic Law: Referendum does not apply in this case. The Israeli High Court of Justice (HCJ) issued its decision on petitions against the agreement, some of which were based on the Basic Law (HCJ 6654/22, Kohelet Forum v. Prime Minister, Dec. 13, 2022). The HCJ accepted the Israeli government's position that the law does not apply since the boundary between the states was never demarcated and delimited and thus the law, jurisdiction and administration of the State of Israel do not apply in the relevant maritime zones and rejected the petitions. Even if we accept that Israel may have signed the agreement ultra vires with respect to part of the disputed area, it is still obligated to abide by the agreement in accordance with international law.26 2. Compliance with the Law of the Sea This section highlights some of the challenges and issues concerning the agreements from the perspective of international law and specifically LOS. To clarify, this article does not address the rules for maritime boundary delimitation or examine the agreement’s compliance with these rules. This is not a scientific analysis of the maritime environment of the Mediterranean Sea. Rather, the article highlights several legal issues that may arise in this context. 2.1 Israel’s EEZ The main issue or challenge that may arise with respect to the agreement is the question of Israel’s so-called EEZ. Unlike the territorial sea or the continental shelf, there is a need to explicitly proclaim an EEZ,27 yet Israel never officially proclaimed its EEZ. It is noteworthy that the 2010 agreement between Israel and Cyprus does not constitute a proclamation, since boundary delimitation agreements cannot establish a maritime zone; they can only divide zones that already exist. The coastal state must unilaterally proclaim its EEZ before agreeing to delimit the zone with its neighbors. A government decision in 2011 determined the coordinates for the northern limit of the territorial sea and EEZ. That decision was deposited in the UN,28 but the 2011 decision does not constitute a proclamation of Israel’s EEZ for several reasons. First, the decision deviates from state practice since there is no reference to the breadth of the zone, the applicable law in the zone, and the coastal state and other states’ rights and obligations in the zone.29 The decision also refers only to one line and not to the whole zone, which spatially extends seawards. There is no legal significance in “proclaiming” one line out of the four (including the coastline) that comprise the maritime zone. Lastly, the language of the decision indicates that the intention was to delimit the boundary as a reaction to Lebanon’s proclamation of its EEZ rather than a proclamation of Israel’s EEZ.30 Technically, Israel does not have an EEZ. This renders the agreement with Lebanon unnecessary or void. 15. Compare the Israel deposit of charts to the UN 2011, supra note 12, with the deposit chart of the agreement, DOALOS website, available at https://www.un.org/Depts/los/ LEGISLATIONANDTREATIES/PDFFILES/IsraelCoordinates. pdf 16. See Annex A to the agreement, materials submitted for the Israeli government decision concerning the agreement, supra note 5, p. 7. 17. UNCLOS, supra note 2, Art. 56(1)(a). 18. See DOALOS website (unofficial translation), Feb. 10, 1953, available at https://www.un.org/Depts/los/ LEGISLATIONANDTREATIES/PDFFILES/ISR_1953_ Law.pdf 19. The continental shelf is the seabed beyond the territorial sea and up to at least 200 nm. See UNCLOS, supra note 2, Art. 76(1). Israeli law mentions only the seabed and subsoil, see unofficial translation, DOALOS, supra note 18. There was an attempt to legislate a law that regulates all Israel’s maritime zones; however, the legislation process has stopped due to changes in the Knesset and government. See the Knesset website, available at https://main.knesset. gov.il/Activity/Legislation/Laws/Pages/LawBill.aspx? t=lawsuggestionssearch&lawitemid=2022714 20. See also the explanations to the Maritime Zones Bill (57782017) (Hebrew), Knesset website, available at https:// fs.knesset.gov.il/20/law/20_ls1_392707.pdf, p. 48. 21. Advisory opinion of Israeli Ministry of Justice, materials submitted for the Israeli government decision concerning the agreement, supra note 5, p. 37. 22. UNCLOS, supra note 2, Art. 2(1); see also John Noyes, “The Territorial Sea and Contiguous Zone,” THE OXFORD HANDBOOK OF THE LAW OF THE SEA 91, 97 (Donald Rothwell, Alex Oude Elferink, Karen Scott and Tim Stephens, eds., Oxford University Press, 2015). 23. Advisory opinion of Israeli Ministry of Justice, materials submitted for the Israeli government decision concerning the agreement, supra note 5, p. 48. 24. For example, the claim that Israel does not exercise its jurisdiction and power in the disputed area does not mean that it has no jurisdiction and power in the area. Id., pp. 51-53. 25. Noyes, supra note 22, p. 96. 26. VCLT, supra note 6, Art. 27.
6 No. 69 JUSTICE agreements, for delimitation or otherwise, concerning marine resources utilization has developed through state practice. In some cases, disputing parties have reached an agreement on the utilization of resources when there is no agreement on a boundary.39 Thus, state practice essentially circumvents UNCLOS’s provisions in this context. 27. See Shani Friedman, “The Concept of Entitlement to an Exclusive Economic Zone as Reflected in International Judicial Decisions,” 53(1) ISR. L. REV. 101, 102-103 (2020). The paper also analyzes what constitutes a proclamation. 28. Israel deposit of charts to the UN 2011, supra note 12. 29. See Israel deposit of charts to the UN 2011, supra note 12; Shani Friedman, “The Challenges in the Israeli Maritime Zones Bill, 5778-2017,” INTERNATIONAL LAW PERSPECTIVE, ARTICLES IN HONOR OF PROF. RUTH LAPIDOTH 157, 164 (Yuval Shany and Hilly Moodrick-Even Khen, eds., Nevo Publishing, 2020, Hebrew). 30. Israel deposit of charts to the UN 2011, supra note 12. 31. See text of the agreement, materials submitted for the Israeli government decision concerning the agreement, supra note 5, p. 2. 32. Yiallourides et al., supra note 5. 33. UNCLOS, supra note 2, Art. 56(1)(a); see also Continental Shelf (Libyan Arab Jamahiriya/Malta), supra note 4, pp. 13, 123; Yoshifumi Tanaka, THE INTERNATIONAL LAW OF THE SEA 145-185 (3rd ed., Cambridge University Press, 2019). 34. See examples of state practice, Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, ICJ Reports 1985, p. 13, para. 34; UNCLOS III Documents, A/CONF.62/SR.127 (3 April 1980), pp. 28-29, para. 53. For the practice of international tribunals, see for example, Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, p. 18, Dissenting Opinion of Judge Oda, at paras. 126, 146, and Separate Opinion of Judge Jiménez De Aréchaga, at paras. 54-55; Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment, ICJ Reports, 1993, p. 38 at para. 46. Separate Opinion of Judge Oda, at paras. 5, 62, 70, and Separate Opinion of Judge Shahabuddeen at p. 167. In the latter, the Court adopted the notion that the continental shelf is absorbed into the EEZ regime. 35. VCLT, supra note 6, Art. 27. 36. There are fewer than 400 nm between states in the Eastern Mediterranean Sea, thus there are no maritime zones beyond 200 nm. 37. Text of the agreement, materials submitted for the Israeli government decision concerning the agreement, supra note 5, pp. 3-5. 38. UNCLOS, supra note 2, Arts. 74, 83. However, neither Lebanon nor Cyprus ever contested this issue and may have implicitly accepted Israel’s EEZ by concluding the agreements. While this deviates from developed practice, it is not prohibited, and if there is no objection from other states, it might be accepted. 2.2 The relationship between the continental shelf and the EEZ The agreement does not specifically address the continental shelf, only the territorial sea and the EEZ.31 Some scholars question whether the lack of reference to the continental shelf indicates that the EEZ has absorbed the continental shelf, which they claim is mistaken, although they recognize that the agreement does not necessarily reflect that notion.32 While the CS and the EEZ are separate legal regimes under UNCLOS, the EEZ in practice includes both the seabed (the CS) and the superjacent water column.33 Thus, in practice these separate legal regimes, at least in the area up to 200 nm, have been treated as parallel or even overlapping regimes, not just by states but also by international tribunals.34 The structure of the CS and the EEZ, and the fact that the latter has to be proclaimed,35 led to state practice of only addressing the EEZ in domestic legislation and bilateral agreements. Although inconsistent with UNCLOS and scholars’ views, such practice is common. The distinction is only relevant when the CS is beyond 200 nm, which is not the case in the Eastern Mediterranean Sea.36 The distinction between the legal regimes might also be relevant if we accept the proposition that Israel does not have an EEZ. As discussed above, in practice this might be a moot question. 2.3 Marine resources utilization Sections 2 and 3 of the agreement address marine resource utilization by the parties in the disputed area known as the “Qana prospect,” and utilization of future trans-boundary deposits, respectively.37 The parties agreed in general on the characteristics of the possible operator of the Qana prospect and how it will operate, and rules concerning cooperation in utilizing future reservoirs. It is noteworthy that UNCLOS does not address arrangements for utilization of trans-boundary deposits of non-living resources. The only provision is that pending a delimitation agreement, the parties shall make every effort to enter into provisional arrangements, which would be without prejudice to the final delimitation agreement, and not to jeopardize or hamper the reaching of a final agreement.38 The inclusion of provisions in bilateral
7 Spring 2023 39. Eritrea/Yemen - Sovereignty and Maritime Delimitation in the Red Sea, case no. 1996-04 “Award of the Arbitral Tribunal in the Second Stage - Maritime Delimitation,” Dec. 17, 1999 [PCA], at para. 84; Julia Lisztwan, “Stability of Maritime Boundary Agreements, 37 YALE J. INT’L L. 153, 180-181 (2012); Constantinos Yiallourides, Joint Development of Seabed Resources in Areas of Overlapping Maritime Claims: An Analysis of Precedents in State Practice, 31 U.S.F. MAR. L.J. 129 (2018); Youri van Logchem, THE RIGHTS AND OBLIGATIONS OF STATES IN DISPUTED MARITIME AREAS 249 (Cambridge University Press, 2021). 40. Yiallourides, supra note 39, pp. 138-140; Vasco BeckerWeinberg, JOINT DEVELOPMENT OF HYDROCARBON DEPOSITS IN THE LAW OF THE SEA 128 (2014). 41. Agreement between the Government of the State of Israel and the Government of the Republic of Cyprus, supra note 9; Yiallourides et al., supra note 5. It seems that Cyprus and Lebanon agreed to continue diplomatic talks to ratify the agreement. See https://www.timesofisrael.com/afterisrael-deal-lebanon-and-cyprus-agree-to-move-forwardon-maritime-border-talks/ 42. Supra note 12. For Lebanon contestation, see letter dated 20 June 2011 from the Minister for Foreign Affairs and Emigrants of Lebanon, supra note 13. 43. Supra note 13. 44. See for example, Agreement between the Government of the State of Israel and the Government of the Republic of Cyprus, supra note 9, Art. 3. 45. See further discussion, Yiallourides et al., supra note 5. 46. See press release, Cyprus’s Ministry of Foreign Affairs, available at https://mfa.gov.cy/press-releases/2022/10/12/ agreement-israel-lebanon-oct-2022/ 47. Ibid. 48. See examples of reports at https://knews.kathimerini.com. cy/en/news/cyprus-probes-dotted-line-in-israel-lebanon-deal Not only do these agreements circumvent the legal regime by addressing activities not regulated in UNCLOS, at least with respect to the CS or EEZ (i.e., resource utilization rather than delimitation), they also circumvent the legal regime by creating permanent rather than “provisional” arrangements. These agreements may jeopardize reaching a final delimitation agreement, since they might alter the environment in a way that will affect the possible area that would be attributed to each party. It is also interesting that international oil and gas companies have significantly influenced the conclusion of such bilateral agreements. States often rely on the funds, equipment, and expertise of such companies to develop their offshore resources. In addition to geological conditions, political and economic stability also helps promote private investments. Bilateral agreements thus encourage international corporations to operate in disputed maritime zones by increasing legal certainty concerning the rights of the states in these areas.40 3. Compliance with Other Agreements of the Parties in the Area As mentioned above, the agreement between Israel and Lebanon follows two other agreements in the area – between Israel and Cyprus (in force), and between Lebanon and Cyprus (not in force).41 Israel and Cyprus used point 1 as the northern starting point for their agreement, which Lebanon contested.42 Lebanon and Cyprus used point 23 as the southern starting point for their agreement.43 The fact that Israel and Lebanon agreed on point 23 as the boundary line between them, essentially accepting Lebanon’s claim, means that point 1 between Israel and Cyprus is now located in Lebanon’s maritime zone. This requires a revision of the relevant agreement. Both agreements with Cyprus recognize the possibility of reviewing and changing the boundary in light of a future delimitation agreement between Israel and Lebanon. However, the agreements with Cyprus require notification and consultation with Cyprus during the negotiations.44 If Israel and Lebanon have not done so, this might be a breach of the agreement with Cyprus.45 Cyprus has requested from the parties notification and consultation on the agreement,46 but there is no indication that the parties have done so. The language used by the Cypriot Ministry of Foreign Affairs indicates that there is no claim of a breach of agreement with Cyprus or denial of the request for consultations.47 However, the Ministry’s spokesperson indicated that Cyprus requested official information from Lebanon after the conclusion of the agreement.48 This may confirm that the procedural requirements concerning Cyprus have not been met. Concluding Remarks The maritime delimitation agreement between Israel and Lebanon is a historical and unique agreement that grants benefits to both parties. The agreement may also encourage delimitation of the boundary between Lebanon and Cyprus. While the agreement poses a few challenges to Israel from the perspective of both Israeli law and international law, it seems that the agreement promotes the purpose of peaceful resolution of disputes in the Eastern Mediterranean Sea, in accordance with international law. n Adv. Shani Friedman is a PhD student and a research fellow at the Law Faculty, Hebrew University of Jerusalem.
8 No. 69 JUSTICE Annex 1 Figure 1: The Israel-Lebanon borderlines as defined in the finalized accord Available at https://www.timesofisrael.com/lebanon-years-away-from-gas-riches-even-if-it-closesborder-deal-with-israel/
9 Spring 2023 Figure 2 Available at https://www.msn.com/he-il/news/news-middle-east/us-and-israel-set-to-sign-letter-ofguarantee-regarding-lebanon-maritime-border-deal/ar-AA13whaf
10 No. 69 JUSTICE he United Nations General Assembly has requested an advisory opinion from the International Court of Justice on the legality of the Israel “occupation of Palestinian territory occupied since 1967.” Should Israel participate in the proceedings? In addition to its primary function of adjudicating disputes between states, the International Court of Justice in the Hague (ICJ) can also render advisory opinions to the UN General Assembly and to other UN bodies.1 On December 30, 2022, the UN General Assembly adopted a Resolution requesting an advisory opinion from the ICJ on two questions: (a) What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to selfdetermination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures? (b) How do the policies and practices of Israel … affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status?2 ICJ advisory opinions are not binding on states, nor are they binding on the UN General Assembly which requested the opinion. Nevertheless, they are considered as binding by the UN Secretariat and UN administration. Moreover, many UN bodies and international organizations accord much credence and legal weight to ICJ advisory opinions. Organizations that have a record of anti-Israel actions, such as the UN Human Rights Council, may want to rely on such an advisory opinion to justify future anti-Israel activity. The UN General Assembly Resolution was initiated by the Palestinian delegation to the UN as part of a concerted effort to delegitimize Israel. Victor Kattan, a well-regarded Palestinian international lawyer, commented that if the ICJ gives an advisory opinion as requested, “Western governments may also find it harder not to put pressure on Israel to end the occupation.”3 Some have argued that it is better that the Palestinians engage in international legal maneuvers rather than in terrorism, though a response could be that they continue at the same time to support terrorism by granting financial inducements to the families of terrorists, the so-called “pay to slay” policy. It is not the first time that the Palestinians have initiated such a tactic. In 2003, the UN General Assembly requested an advisory opinion from the ICJ as to “What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory.”4 The ICJ rendered an opinion that the construction of the “wall” was illegal and violated Palestinian human rights. The Court concluded that it would not examine the wall in the context of Israel's right to self-defense since the terrorist attacks, which the “wall” was aimed to prevent, did not emanate from a foreign state. This conclusion was subject to much criticism by international lawyers, and it is possible that this criticism will temper the enthusiasm of the International Court to again be used as part of a Palestinian political campaign. Although posed in legal language, the Court is, in fact, being asked to give an opinion on a highly divisive political issue. The ICJ has discretion as to whether to render an advisory opinion, but in the past, it has never declined such a request from the UN General Assembly. The secretariat of the Court has already requested extra financing to enable the Court to prepare an advisory opinion on the issue. In this case, the Court may, however, take into consideration that the resolution requesting an Request for ICJ Advisory Opinion T Robbie Sabel 1. UN Charter, Art. 65. 2. UN GA Res. A/Res/77/400 DR 1, Dec. 30,2022, adopting the recommendation of the UNGA Fourth Committee. 3. Victor Kattan, “Thanks to Putin, the world has noticed the occupation,” HAARETZ, English ed., Nov. 21, 2022. 4. UN GA Res. ES-10/14, adopted Dec. 8, 2003.
11 Spring 2023 opinion was adopted by a majority that was far from overwhelming. Seventy-seven states either voted against the resolution or abstained. If the International Court nevertheless decides to give an advisory opinion, the secretariat of the Court will invite all states, members of the United Nations, to submit opinions or comments on the issue and to appear before the Court if they so wish.5 In the Wall case, Israel decided not to officially submit comments as to the substance or to appear before the Court, but to limit itself to submitting a legal brief as to why the Court should decline to give an advisory opinion. This conduct was based on the apprehension that by raising arguments as to the substance of the issue, it would legitimize the procedure. In its legal brief, Israel argued that the issue was political and not legal and that it involved the rights of Israel, and Israel had not agreed to request an opinion from the Court. Israel further argued that the request for an advisory opinion on what was essentially a dispute between Israel and the Palestinians was an attempt to circumvent the need for the parties to agree to submit an issue to a judicial body. Israel also argued that since the Security Council was dealing with the issue, it was not within the competence of the General Assembly to request an advisory opinion and that the Oslo agreements had stipulated an agreed upon mechanism for solving disputes. Several western states also recommended to the Court not to render an opinion on the issue. The Court nevertheless decided to render an opinion, claiming that it was not adjudicating the dispute between Israel and the Palestinians, but only giving a legal opinion to the UN General Assembly. It is to be hoped that the Court will decline to render an advisory opinion. If the Court does decide to render an opinion, the Israeli government will face the same dilemma as in the Wall case. It might be worthwhile, this time, for Israel to submit comments on the substance, in addition to again arguing that the Court should decline to give an opinion. There are several fair and impartial judges on the Court, and they should be made aware of Israeli legal arguments. In the Wall case, friendly judges on the Court heard only arguments from the opposing side, and this appears to have influenced their decision. It is not clear that Israel's absence from the Court in the Wall case did, in fact, delegitimize the proceedings. The many criticisms of the substance of the Court's decision in the Wall case were not related to the legitimacy of the proceedings. Israel has a strong legal case. The legal issues that Israel can raise include the fact that this is a sui generis situation. Israel has security rights in the territories that derive from the Oslo agreements with the PLO itself. It may be worthwhile reminding the Court that the Oslo agreements were signed by the PLO representing the Palestinian people, and witnessed by representatives of the United States, Russia, Egypt, Jordan, the European Union and Norway. Furthermore, the agreements were endorsed by the UN General Assembly6 and earned the negotiators the Nobel Peace Prize. Other issues that can be raised include the fact that military occupation is not illegal under international law, and that the UN Security Council has never designated Israeli occupation as illegal. The Israeli government has a first-rate team of international lawyers. It might be wise to utilize them in this instance to present the case for Israel, rather than trying to defend Israel's position by silence in abstentia. n Robbie Sabel is a professor of international law at the Hebrew University of Jerusalem, and a member of the Academic Advisory Board of Justice. 5 UN Charter, Art. 66. 6. UN Doc. ES-10114, adopted 8 December 2003.
12 No. 69 JUSTICE n November of last year, I had the honor of chairing a session titled, “Tackling Injustices from the Time of the Holocaust – Immovable Property and Looted Art” at the Terezín Declaration Conference convened during the Czech Presidency of the Council of the European Union.1 The panel was comprised of a number of experts, including Ferdinand Trauttmansdorff, former Austrian Ambassador in Prague; Anne Webber, co-chair of the Commission for Looted Art in Europe; Dr. Wesley Fisher, Director of Research, Conference on Jewish Material Claims Against Germany (Claims Conference); David Zivie, head of the Mission for the Search and Restitution of Spoliated Cultural Property 1933-1945 in the French Ministry of Culture; and Dr. Pia Schölnberger, head of the Commission for Art Restitution and Provenance Research at the National Fund of the Republic of Austria for Victims of National Socialism since 1945. In his remarks to the conference, Stuart Eizenstat, the former U.S. Ambassador to the European Union and an expert in restitution issues, and now serving as a special advisor on Holocaust issues to U.S. Secretary of State Antony Blinken, said: This Conference gives us the last, best hope to help the 275,000 remaining Holocaust survivors live out their last years in greater dignity than they knew in their tragic youth. It is unlikely there will be another international conference with this breadth of participation in their lifetimes. They are passing away at the rate of six percent a year.2 The Terezin Declaration, signed by 47 countries, is recognized as the most comprehensive set of international commitments for Holocaust justice and for ensuring that the memory of six million Jewish men, women, and children, as well as other victims of Nazi persecution, are not forgotten. It calls for welfare benefits for elderly survivors living in poverty and the recovery of or compensation for immovable property of both a communal or religious nature, as well as private or heirless property. It also supports the identification and protection of Jewish cemeteries and burial sites, the return of Nazi-confiscated and looted art as well as the identification, cataloguing and return of confiscated Judaica and Jewish cultural property. Finally, it demands increased access to archival materials and the promotion of Holocaust education, remembrance, research and memorial sites. Holocaust restitution is not about money. It is about victims. It is about individuals who have waited almost 80 years for justice and recognition of their loss of property. What we know about the Nazis is that they were many things: they were murderers; they were psychopaths; they were bigots; they were racists, and they were antisemites. But they were also thieves. They looted and plundered throughout Europe. They stole from citizens; they stole from states, and, because there is no honor among thieves, they stole from one another. Elie Wiesel articulated this far more eloquently than I, saying that this Nazis’ thievery was a process: “They stole your living, they stole your belongings, they stole your individuality. And they tried to wipe you out. To wipe out the fact that you ever existed.”3 In their book Justice After the Holocaust: Fulfilling the Terezin Declaration and Immovable Property Restitution, Michael J. Bazyler, Kathryn Lee Boyd, Kristen I. Nelson and Rajika I. Shah describe the hurdles that survivors faced when attempting to recover their property in the aftermath of the Holocaust: [R]eturning survivors had to navigate a frequently unclear path to recover their property from governments and neighbours who had failed to protect them and who often had been complicit in their Failure to Enact Restitution Laws for Property Stolen by the Nazis and their Collaborators I Lord Eric Pickles 1. https://www.mzv.cz/jnp/en/foreign_relations/terezin_ declaration/index.html 2. Terezin Declaration Conference Remarks by Ambassador (ret.) Stuart E. Eizenstat, Special Adviser to the Secretary of State on Holocaust Issues, Nov. 3, 2022, Prague, Czech Republic (“2009 Terezin Declaration”), available at https:// www.mzv.cz/public/4b/66/97/4846140_2947474__20221103_ Eizenstat_Remarks.Version_for_Program_Printing.docx 3. Elie Wiesel, M Wiesel, NIGHT (Penguin Classics, 2004).
13 Spring 2023 persecution. While the return of Nazi-looted art has garnered the most media attention, and there have been well-publicized settlements involving stolen Swiss bank deposits and unpaid insurance policies, there is a larger piece of Holocaust injustice that has not been adequately dealt with: stolen land and buildings, much of which today remain unrestituted.4 Nearly eight decades after the Holocaust, the number of survivors of Nazi atrocities diminishes each year. Sadly, many have died before receiving restitution that they had sought for decades. Experts on the demography of the remaining Holocaust survivors believe that more than one-third live in poverty. In addition, a 2020 report from the U.S. State Department issued a troubling assessment of the state of Holocaust restitution. The report found that “[b]ureaucratic inertia has delayed the resolution of too many restitution claims.”5 Claims are often not considered in a timely manner, let alone making it to the correct agency. In some countries, the regulations are so stringent that it is nearly impossible for survivors no longer living in the country of their birth to receive any restitution. This is a particular obstacle for communities of survivors living in the U.S., Israel, and the UK. In November 2022, I joined diplomats from 46 other nations, gathered in the Czech Republic to take stock of the state of property restitution. Almost fourteen years have passed since 47 countries signed the 2009 Terezin Declaration and committed to right the economic wrongs from the Holocaust-era. There has been some progress. Many Central and Eastern European nations have adopted a special approach or enacted specific legislation to provide restitution of, or compensation for, confiscated assets. But sadly, this is not enough. Many Holocaust survivors have persevered for years, attempting to recover their family’s property with little evidence or hope that they succeed. One example is 91-year-old Leo Wiener, who came to London before the outbreak of war with his parents from what was then Czechoslovakia. Leo’s family had several businesses across Ostrava, all of which were confiscated by the Nazis. Leo’s grandparents, aunts and uncles were all murdered at Treblinka. After the war, Leo’s father returned to Czechoslovakia in an attempt to retrieve the family businesses and home. The family home was still standing but had been looted. Leo’s father was unable to retrieve any of the businesses and only managed to recover a few pieces that had been left behind. He tried over many years to retrieve the family’s property – first under the Communists and again when the Berlin Wall fell, but to no avail. Leo eventually adopted his father’s quest, but despite years of effort, he was told that he was not a close enough relative to his grandparents to claim compensation. This is a common “explanation” given to families trying to get their property returned. Leo’s circumstances are not unusual. Despite years of campaigning, Poland still lacks any compensation scheme for recovering private property. Poland was home to approximately 3,300,000 Jewish men, women and children prior to the Second World War, the vast majority of whom were murdered in the Holocaust. Scandalously, the Polish government still has not addressed the concerns of dispossessed Holocaust survivors and their heirs. Nor have they addressed the return of property taken from non-Jewish Poles. Imagine if we were to announce that henceforth, property rights would be determined by the Nazis’ Nuremberg laws – people would be rightly outraged. However, this is effectively what has happened in large parts of the world by putting so many obstacles in the way of restituting stolen property. The recent Terezin Conference brought home the fact that while the vast majority of signatories to the declaration have made excellent progress on Holocaust education and remembrance, there is still a long way to go regarding real property and looted cultural property. Ferdinand Trauttmansdorff, who was instrumental in drafting the original 2009 Terezin Declaration, told the Conference that “naming and shaming” is not the answer and that collaborative partnerships and highlighting best practice is more successful. It was hoped that the European Shoah Legacy Institute (ESLI), which was established in 2010 and sought to establish systematic solutions on an international level, leading to the restitution of immovable property, art, Judaica and Jewish cultural assets stolen by the Nazis, would be the catalyst for change. However, Trauttmansdorff told the conference that ESLI was unable to secure the necessary follow-up concerning the restitution 4. Michael J. Bazyler, Kathryn Lee Boyd, Kristen I Nelson and Rajika I. Shah, SEARCHING FOR JUSTICE AFTER THE HOLOCAUST: FULFILLING THE TEREZIN DECLARATION AND IMMOVABLE PROPERTY RESTITUTION (Oxford University Press Inc., 2019). 5. The Justice for Uncompensated Survivors Today Act (JUST Act) Report (2020), available at https://www.state.gov/ reports/just-act-report-to-congress
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