We appreciate the opportunity to offer our perspective on the internal review document (‘Review’) pursuant to the Expression of Concern attached by the Editors-in-Chief to our recently published article, ‘Postwar development of offshore energy resources’ (‘the Article’), in the Leiden Journal of International Law.
The Review raised several arguments and concerns regarding our article that we would like to address. While we may not agree with many of the arguments made in the Review, either because we disagree with the legal interpretations they employ or because they refer to arguments that do not actually appear in our article, we do wish to use this opportunity to create a more engaging conversation that addresses both the Journal’s and the readers’ concerns in a satisfactory way, while also raising some of our own concerns.
As the Review recognizes, our article was written, reviewed, and revised before the release of the International Court of Justice (ICJ) Advisory Opinion of 19 July 2024 on Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem (hereafter ‘Policies and Practices AO’). Consequently, our article could not have addressed the Policies and Practices AO, as it did not exist at the time. The absence of the Policies and Practices AO from our article created concern among some readers that we intentionally ignored its conclusions to serve our argument. However, this was not a deliberate omission but rather an unfortunate consequence of the long and rigorous review and publication process that all peer-reviewed papers must justifiably go through. As accepted in academia, research is conducted based on the available materials. Generally, academic articles are not required to be changed when new material comes to light, otherwise every article in every journal would have to be constantly opened in order to accommodate changes and revisions. Instead, the release of any new material, whether it is a new ruling, opinion, or a recently uncovered archival document that sheds new light on a subject, is normally treated as an opportunity to publish new articles that contribute to the literature, and not as a call to revise an existing article.
Having said that, we are willing to address the Policies and Practices AO in this reflection to cultivate sincere academic debate in good faith. We aim to show that while the Policies and Practices AO may affect some of the points in our article, it does not change our overall argument. On the contrary, we argue that the recent ruling strengthens the innovative aspects of our article and its contribution to the legal literature. This is because our article touches upon issues that were not addressed by the ICJ and did not gain enough attention from scholars and practitioners. These issues namely relate to the impact of the law of the sea on the maritime aspects of the Israeli–Palestinian conflict, and specifically to the question of how it applies to the economic rights over resources found in international waters in the case of Gaza. Moreover, our article’s conclusion supports the notion that the Palestinians maintain exclusive rights to develop the Gaza Marine gas field in Gaza’s economic waters, and so it does not contradict the Policies and Practices AO. As such, we believe that our article is still very relevant to both readers and legal scholars, regardless of whether the Policies and Practices AO appears in our article.
In the following pages we will address the arguments and concerns raised in the Review in the order and headline in which they appear in the Review. We will also add some reflections as to the timing and context under which our article was released, as well as how it was interpreted by some readers. In addition, we have added a Corrigendum to this issue that details some corrections and points to certain phrases that should be re-worded to avoid any further misinterpretations of our article’s arguments.
1. Introduction of the Review
While we appreciate the opportunity to address the issues raised by the Review, we disagree with how the Review frames our article in its introduction. The introduction states that the article contains ‘omissions and inaccuracies relating to fact and law’ and describes them as ‘substantive’.Footnote 1 We believe that our article meets all academic standards and is well-based in both law and facts. The authors of the Review may have different interpretations of the legal issues we raise, and we intend to address these differences in earnest in the following pages. However, to the extent the critique is phrased as a case of true and false, rather than a simple difference in legal views and opinions, we do not consider this wording to be a fair or accurate assessment of our article.
2. Contextual omission: The ongoing conflict in Gaza
One of the main concerns raised in the Review is that our article was not sensitive enough to the broader context of the Israeli–Palestinian conflict, and specifically to the devastating loss of countless Palestinian lives during the war between Israel and Hamas in Gaza that has been waging since October 2023. We acknowledge that some readers have even understood our article as a call to exploit Palestinian resources for Israel’s benefit during a time of war and great loss, and as such have found it to be ‘poorly timed’ and even ‘distasteful’.
While we understand these sensitivities and recognize that some phrases in our article could have been worded differently to better express the severity of the ongoing war, we strongly object to the assertion that our article ‘could be interpreted as normalizing or sanitizing exploitative extraction’, as stated in the Review.Footnote 2 We find this assertion to be misplaced, considering that the article argues for the completely opposite conclusion. Our article asserts repeatedly that Israel has no claim to the Gaza Marine gas field under any circumstance, and that only the Palestinians have the legal rights to develop the field.
To make this argument, our article considers four political models of governance that are widely recognized in the literature of international relations to be the most common results of territorial conflicts.Footnote 3 These include independence, occupation, transitional governance, and even the most extreme and illegal result of unlawful annexation. These models were not assessed according to their likelihood, let alone legality, but only to assert that no circumstance or scenario, as extreme as it may be, can prevent the Palestinians from developing their own resources. As such, the phrase that appears on page 15 of our article, which states that ‘…this analysis does not give preference to either model’,Footnote 4 refers to the fact that we cannot determine which model is more likely to take place in real life, as the war is still ongoing. It was not meant to be read as a statement that the authors consider all models equally valid or legal. Instead, the article argues that it must consider all possible models of governance to make its case regarding the future development of Gaza Marine by the Palestinians.
At no point does our article endorse or legitimize annexation, but it does recognize that annexation may occur, as it often does in many other cases around the world as cited in the original article,Footnote 5 and that it is the only scenario that may prevent the Palestinians from exercising their rights to the resources in their waters. Rather than ignore this possibility, reality requires us as academics to examine the legal implications of annexation despite its extremity or illegality, rather than burying our heads in the sand. Even so, we failed to anticipate a far more extreme possibility, as seen in President Trump’s surprising declarations in February 2025 to ‘take over Gaza’. Since this is not at all a common scenario that occurs in the international system, we did not consider it as a possible model in our article. To clarify our intentions, we stated in our article several times that annexation is illegal,Footnote 6 and we mentioned historic cases where annexation was tacitly accepted just to argue that this is not the case in Gaza, and thus it does not alter the Palestinian rights to the gas field. It is worth pointing out that our article also clearly states on page 20 that ‘…the goal of establishing an independent Palestinian state alongside Israel is the overwhelmingly preferred model of governance’.Footnote 7
We were thus surprised that readers interpreted the article as advocating in favour of Israeli resource exploitation or annexation. We strongly reject this reading of our article, and we find fault in the fact that the Review document does not outright reject this misinterpretation, but instead gives it credence by raising it as a valid way of understanding the article’s argument. We do not subscribe to the idea that by merely discussing the legal implication of an illegal political scenario we are implicitly endorsing its occurrence. Such an assertion would be applicable to volumes of literature published in recent years regarding other territories which have been unlawfully annexed.Footnote 8 Our article is therefore unexceptional. It employs a well-established method of testing the validity of academic arguments and theories.Footnote 9 This should be clear to an academic community, and we wish to make it clear here as well.
While we recognize the sensitive context and difficult timing of our article, we believe that it is important that its arguments are rooted in the reality of the ongoing war in Gaza. To emphasize this necessity, our article provides a lengthy historical background to our case study leading up to, and including, the massacre committed by Hamas on 7 October 2023, and the subsequent war it ignited. It also brings to light various statements made by Israeli officials that demonstrate how each scenario may plausibly take place. However, our article addresses the narrow and specific issue of resource development as part of postwar rehabilitation, as it seeks one possible way to improve the lives of Palestinians by providing the legal basis for their valid claim to their own natural resources under any future scenario. This is why we found it especially important to write this article at the time we did, before hypothetical scenarios become facts and scholarly analysis is no longer able to meaningfully influence practice. To clarify, our article does not promote the possibility of any of these scenarios materializing, but we do believe that by providing a complete picture of the facts and legal consequences, legal practitioners and policymakers may hold better tools for navigating an uncertain future to find a way to develop the Gaza Marine gas field for the benefit of the Palestinian people.
More broadly, over the past few years we have written extensively about the need to improve electricity access to Palestinians in Gaza. A quick search of our past work will reveal that we have written against Israel’s decision to cut electricity and diesel supply to Gaza during the first months of the war, we have advocated for more solar installations in Gaza as part of its reconstruction, and we have pointed to the Palestinian development of the Gaza Marine gas field as both a source of income and energy security for the people of Gaza much before the war began.Footnote 10 We believe that only through cooperation, development, and dialogue can we stop the cycle of violence. We thus write within our narrow field of energy to advance this belief.
3. Substantive inaccuracies and omissions
3.1 Inaccuracies in references to Palestine’s status
We acknowledge that many readers took issue with the fact that our article does not refer to the ‘State of Palestine’ but rather to the ‘Palestinian Authority’. Although we explained in our article why we made this decision,Footnote 11 we do recognize that our explanation was not sufficient, and we wish to further explain this point.
First, we believe that the question of Palestine’s statehood is a contentious issue in international law and thus the use of the term ‘State of Palestine’ merits a debate in certain contexts, rather than be used as a legal fact that should be corrected in our article. This debate is not meant to delegitimize the statehood of Palestine or the right of the Palestinian people to self-determination. Its purpose is to focus specifically on maritime resource issues that require a clear-cut definition of sovereignty that is problematic in this specific context, particularly considering the unknown factor of who governs Gaza in the various political models presented in our article.
Although Palestine is recognized as a state by many other states in the international system,Footnote 12 it has acceded to several international treaties, including United Nations Convention on the Law of the Sea (UNCLOS),Footnote 13 and has a special status in the UN as non-member observer state,Footnote 14 its status is still a contentious issue under international law. Indeed, to the extent statehood is a question of fact, requiring inter alia effective government,Footnote 15 then serious questions can be raised as to Palestine’s statehood.Footnote 16 Additionally, as mentioned, although it has a special status in the UN, it has not been admitted as a member to the organization, with some states supporting its observer state status expressing reservations as to its actual statehood.Footnote 17 Second, it is noteworthy that even the Policies and Practices AO does not determine Palestine’s status, and specifically its statehood. At least one judge even acknowledged this omission in his separate opinion.Footnote 18 Furthermore, the AO addresses both Palestine as a state and the right of the Palestinians to self-determination. Addressing both terms at the same time indicates that the question of Palestine’s status is not clear-cut. If Palestine is a state, then the right of self-determination has been fulfilled, and any analysis should refer to ‘sovereignty’ rather than to ‘self-determination’ (or address ‘Palestine’ rather than the ‘Palestinian people’).Footnote 19
With respect to UNCLOS, although the State of Palestine has factually acceded to the Convention, it does not necessarily indicate that Palestine is a state. As explained in our article, since UNCLOS is also open to certain non-state actors and not just states (UNCLOS, Article 305), and since Palestine can be considered an entity that has a right to be a party to UNCLOS regardless of whether it is a state, its accession does not indicate a determination on its statehood, despite the title. Arguably the registration under the title ‘State of Palestine’ is a technical issue rather than a decision on its status. That would be beyond the scope of the Convention and competence of the relevant bodies (such as the UN Division for Ocean Affairs and the Law of the Sea). Considering the above, we feel that this issue is beyond the scope of the narrow perspective of our article.
To complete this point, we want to highlight that there is a question concerning the standing of the Palestinian Authority (PA) before the ICJ. First, previous and current proceedings are advisory proceedings and thus there are no ‘parties’. In the Wall Advisory Opinion, the PA was allowed to participate since it had a special status rather than statehood.Footnote 20 Ostensibly, Palestine is a party to a contentious case – Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America). However, its standing before the Court is at the heart of the dispute.Footnote 21 With respect to the Oslo Accords, we believe that the term ‘Palestinian Authority’ is more relevant to the problems our article points to. Although the Palestine Liberation Organization (PLO) was the entity that signed the agreement, the PA is the direct continuing political entity of the PLO, and it also accepted the continued application of the Accords.Footnote 22
Second, we believe that the term ‘Palestine’ does not address or explore all aspects of the complex political situation in Gaza and the West Bank, which greatly influences and is influenced by the specific perspective of our article, which focuses on the law of the sea and the development of marine resources. This underexplored aspect was not addressed in the Policies and Practices AO, nor in the literature or in practice thus far. Addressing these complexities not only contributes to and develops the literature but has significance in practice that may affect postwar rehabilitation of Gaza and thus is crucial to address.
As explained in our article, the term ‘Palestine’ also does not cover all possible factual legal–political scenarios as presented in the Article. Since 2007 Gaza and the West Bank have been governed by two separate political entities. This distinction has not gained sufficient attention from scholars and practitioners when discussing its implications on the law of the sea. Furthermore, the Policies and Practices AO did not address this issue but merely accepted the ‘territorial unity’ of Palestine without acknowledging the political situation.Footnote 23 The Court even stated that it is not going to specifically discuss Gaza in its AO, save for a few paragraphs on the general applicability of the law of occupation. However, this distinction does affect both the possible future scenarios we discuss, the application of UNCLOS, and the rights and obligations of relevant actors under UNCLOS. In this sense, our article offers an innovative perspective.
However, we would like to emphasize that in addressing the political separation of Gaza and the West Bank, we do not argue that the Palestinians in Gaza constitute ‘a separate group or people’. We recognize that Footnote 86 in our article is not worded correctly and should be rephrased, since it makes it appear as if we are referring to Gaza’s population itself as separate from the West Bank, rather than Gaza’s political status. This is of course not our intention. We have added this to our list of corrections that appear in the Corrigendum attached to our article.
As we explained previously, the status of the PA, or Palestine, allows it to accede to UNCLOS as a state or as a self-governing territory. However, its status does affect its rights and obligations under the Convention, namely entitlement to offshore maritime resources. To be clear, our article argues that Gaza Marine solely belongs to the Palestinians. However, ignoring the influence of the political situation on the rights and obligations of the relevant entities under UNCLOS does not help in addressing the complex legal and political reality on the ground, which is what our article aims to do.
Accession to UNCLOS does not mean automatic entitlement to maritime zones and the resources within. For a straightforward example, land-locked states may accede to UNCLOS and have some rights and obligations thereunder, but they do not have the same rights and obligations as coastal states. As explained in page 19 of our article, the political separation raises questions regarding the PA as a coastal state.Footnote 24 Thus, while its accession to UNCLOS is not disputed, there are doubts whether it has entitlement to maritime zones and the resources within and whether it can proclaim an exclusive economic zone (EEZ). This is not because its status is disputed but because it may not be a ‘coastal State’, as it lost all effective control and any signs of sovereignty over Gaza to another Palestinian entity and has been completely separated from it since 2007. Thus, there is no nexus between the land territory and the maritime zones, as required under the law of the sea.
This distinction in status between Gaza and the West Bank does not contradict the fact that Palestinians in both Gaza and the West Bank belong to the same group of people. While we recognize that the authors of the Review may not agree with this interpretation, we believe that the explanations presented in our article (and in this reflection) provide a sufficient basis for making this argument. In this context it is noteworthy that the Policies and Practices AO does not address maritime zones and resources under the law of the sea and its unique rules and principles. Our article thus seeks to clarify this issue and explain how despite these complexities, Gaza Marine solely belongs to the Palestinians.
It is important to once again note that simply pointing to the complexities that arise in certain legal frameworks for the purpose of resolving them does not mean we are arguing that the legal framework itself is void. Such would be an inaccurate understanding of the legal exercise we conducted.
The recognition of the complexities on the ground also informs one of the last sentences that appear in our article, which some have interpreted as endorsing Israel’s development of the Gaza Marine field. We are referring here to the sentence on page 28 stating that ‘…any model for Gaza’s economic development should include co-operation and consultation with Israel’.Footnote 25 This phrase refers to the problem that Gaza Marine is unlikely to be developed without some level of Israeli cooperation. This is mainly due to technical and economic issues that require the Gaza Marine field to connect to existing Israeli underwater pipeline infrastructure and transfer the gas through it to make the project economically viable for development. The sheer cost and engineering complications of constructing separate deep-sea marine infrastructure to the coast for a small gas field without any use of the Israeli infrastructure that already exists in the area will make the project unfeasible to any prospective developer, whether a private or state company. This is why Egypt, which has expressed its desire to develop the field in 2023, coordinated the agreement with Israeli companies, as it requested the use of their pipeline infrastructure.Footnote 26 As such, cooperation with Israel is a real-life necessity that our article recognizes and addresses, not a normative call for a desired policy outcome.
3.2 Omissions and inaccuracies relating to the Oslo Accords
We believe that the Oslo Accords are relevant to our analysis, but we recognize that our article did not sufficiently explain this relevance and we wish to further elaborate on this issue to improve the accuracy of our analysis without changing the overall argument of the article.
While Israel and the PLO (and later PA) were not parties to UNCLOS in the 1990s, it does not mean that the rules and principles reflected in the Convention do not apply, as UNCLOS is considered to reflect customary international law in all relevant respects, even at the time of the Oslo Accords, as determined by the ICJ.Footnote 27 Thus, the customary rules entrenched in UNCLOS, may affect or be affected by the Oslo Accords. It is true that in the case of the PLO, and non-state actors in general, there is a question of application of customary law, however, as we explained in page 19 of our article,Footnote 28 we believe that it nonetheless still applies since UNCLOS itself recognizes that self-governing territories can have rights and obligations under it, as supported by an AO of the Under-Secretary-General for legal affairs to the Security Council.Footnote 29 Thus, we find the relations between UNCLOS and the Oslo Accords to be relevant to the analysis on postwar development of marine resources offshore Gaza.
While we recognize that the language of our analysis may come across as too decisive, we certainly do not argue that the Oslo Accords grant Israel sovereign rights to marine resources offshore Gaza. Our argument was that the Accords may allow Israel control over the physical access to these resources. In accordance with the Oslo Accords, Zones K and M are closed areas, in which navigation is restricted to activity of the Israeli Navy. This means that Israel has the right to prevent access to these zones. In Zone L, the main area, although economic activities are permitted, there is no further regulation of this issue, except limitations applicable to foreign vessels access, which could affect economic activities.Footnote 30 However, it is noteworthy that according to the language of Annex I, Article XIV, paragraph 4, Israel’s responsibilities include, but are not limited to, the enforcement jurisdiction cited in the Review. The term ‘[a]s part of’ in Article XIV may indicate broader discretion of Israel, which is not specifically mentioned in the Accords and may affect economic activities in the area.Footnote 31
Even if this interpretation is not accepted, exercising the enforcement jurisdiction that is explicitly mentioned in the Accords may arguably impede economic activities. Furthermore, the regulation of Israel’s enforcement jurisdiction was supposed to be determined at a later stage, but this aspect was not implemented and thus this issue remains legally vague. We believe that this vagueness is important to our analysis.
We recognize that the Policies and Practices AO determined that the Oslo Accords cannot deprive the Palestinians the benefits accorded under the Fourth Geneva Convention.Footnote 32 However, in this case, it is difficult to comprehend what violation of the Fourth Geneva Convention occurred, or would occur, in the context of Gaza’s offshore resources. Indeed, marine resources are not regulated under the Convention. Second, the Oslo Accords do not deprive the Palestinians the right or entitlement to maritime zones and marine resources, but they do grant Israel specific enforcement jurisdiction, which may prevent access in some cases. Regardless, the rights of the Palestinians remain.Footnote 33
The Policies and Practices AO also determined that the Oslo Accords cannot be relied upon to grant Israel powers that are inconsistent with its obligations under the law of occupation.Footnote 34 Arguably, the Israeli jurisdiction under the Oslo Accords with respect to maritime zones is not inconsistent with its obligations under the law of occupation. While the occupying power cannot utilize marine resources in ‘occupied maritime zones’,Footnote 35 it can exercise jurisdiction for security purposes.Footnote 36 Since the Oslo Accords are not inconsistent with the law of occupation, and since derogation from (the customary rules in) UNCLOS was done through the consent of both parties (which is a relevant treaty as explained above),Footnote 37 the legal analysis in our article remains valid.
3.3 Omissions and inaccuracies concerning the law of occupation
Again, we emphasize that the Policies and Practices AO was not available when our article was written and revised, and thus the analysis was not legally wrong at that time. Our article argued that considering Israel’s withdrawal from Gaza in 2005, it should no longer be considered as an occupied territory,Footnote 38 a position that has support in the literature.Footnote 39 However, the Policies and Practices AO adopted the functional approach to occupation.Footnote 40 Still, the AO does not explicitly say that Gaza is an occupied territory, but that Israel’s withdrawal has not entirely released it of its obligations under the law of occupation.Footnote 41 Although it is not clear if the Court implies that only specific obligations apply or that all relevant obligations apply, it arguably points that at least a certain degree of functional control is held by Israel.
Even if we accept an interpretation according to which the Policies and Practices AO determined that Gaza is an occupied territory, this does not change the legal status of maritime zones offshore Gaza, nor the parties’ rights and obligations under the Oslo Accords and UNCLOS. This also does not change the analysis in the second scenario of our article. It would have, however, required us to state more clearly that the second scenario may be unlawful according to the newly released Policies and Practices AO.Footnote 42 However, as discussed above, the fact that this scenario may be unlawful does not preclude it as a possibility in practice and thus it should be addressed.
We argue that even though the ICJ majority determined the Israeli presence in the Occupied Palestinian Territories (OPT) is illegal and should thus come to an end, so long as the situation continues as it is currently, the parties’ rights and obligations continue to exist (as also noted in paragraph 264 of the AO). Therefore, our analysis is still relevant as it takes into account that the political reality in Gaza is important in this sense, which the Court barely addressed.
3.4 Omissions and inaccuracies on the issue of annexation
Annexation was indeed one of the four models presented in our article, although it was not a ‘central aspect’ of the analysis, contrary to the assertion in the Review. Annexation was perhaps a central aspect of the critique of the article, but the article itself provides much more weight in terms of depth of analysis (and word count) to the other three models, and particularly to the international transitional administration (ITA) model, mainly due to the scarce literature addressing it. We believe that our focus on the ITA model provides an additional contribution to the literature.
We wish to once again emphasize here that our article explicitly argues that annexation in the context of the Israeli–Palestinian conflict is unlawful. Again, as discussed previously, the fact that this scenario is illegal does not mean that we should not address it and its implications in practice. We are concerned that this model might unfortunately take shape in some way or form in Gaza, and so we believed that we should address this scenario and analyse the rights and obligations of relevant actors that apply to it, all while emphasizing its unlawful nature.
We thus reject any suggestions that our methodology can appear to ‘buttress unlawful Israeli claims to Palestinian natural resources’, as stated in the Review. Our article is well within the boundaries of academic discourse, and we are not representatives of the Israeli government or its policies. We regret that such a suggestion is even raised, and we consider it deeply unfair to our article.
3.5 General issues with the treatment of sources
As we stated at the beginning of this reflection, our article could not have addressed the Policies and Practices AO, as it did not exist at the time the article was written, revised, and accepted for publication. We recognize that we could have mentioned the fact that the UN General Assembly requested such an opinion in December 2022, but merely mentioning this would not have had any effect with respect to our legal analysis.
The final point made in the Review argues that we could have used other sources in our article in addition to the ones we chose, and that we simply reiterate Israel’s positions. We reject this assertion. Our article relies on accepted sources and expert scholars in the field. The cited sources are peer-reviewed and do not represent the Israeli government’s position or make assertions without basing the arguments in accordance with the accepted standards of academic research. Moreover, our article repeatedly states that Israel does not hold any rights to develop the Gaza Marine gas field, making the claim that our sources favour the position of the State of Israel rather contradictory. We believe it is thus inappropriate to suggest that our sources are inadequately chosen or carry a bias.
Open access
