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
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