1. Introduction
This piece is a response to the article ‘Postwar Development of Offshore Energy Resources: Legal and Political Models for Developing the Gaza Marine Gas Field’ (‘the article’), by Elai Rettig, Shani Friedman, and Benny Spanier, published in the Leiden Journal of International Law (LJIL FirstView, December 2024).Footnote 1 A key academic weakness of the article is its failure to address the basic facts and law relating to the Gaza Marine offshore gas resources located in two fields in Gaza’s exclusive economic zone (hereafter ‘Gaza Marine’).
This article aims to set the record straight. Before doing so, it must be mentioned that at the time of the submission of the article in early 2024, Israel had already killed, in many instances, deliberately, more than 20,000 Palestinians in Gaza, with an estimated two-thirds of them women and children, while around 85% of the population had been displaced.Footnote 2 Israel has been accused of committing and failing to prevent genocide before the International Court of Justice (ICJ), with three provisional measures orders issued by May 2024. Israel’s leaders, including its prime minister, have had arrest warrants issued against them by the International Criminal Court (ICC) for war crimes and crimes against humanity due to atrocities committed in Gaza since 7 October 2023. Yet the article ignores this context and thought it appropriate to discuss mostly illegal, not to mention immoral, potential ‘future scenarios’ for the exploitation of Gaza Marine. These include the fantastical claim that, ‘postwar disputed territories may be fully or partially annexed by an external sovereign, often by military force. The local population may either be expelled from the territory, remain as residents with limited rights, or be given citizenship under the new regime’.Footnote 3 The authors added that ‘[a]rguably, annexation could be lawful in cases where the international community tacitly accepts the annexation’.Footnote 4 We reject this claim categorically, for annexation violates the long-standing jus cogens norm prohibiting the acquisition of territory by armed force, which would continue to apply even if some states attempted to ‘validate’ it, tacitly or explicitly.
Aside from the ethical issues, the article ignores the legal effects of Palestine’s accession, as a State, to the United Nations Convention on the Law of the Sea (UNCLOS) in 2015.Footnote 5 The article does not mention that Israel is not a party to the Convention. Nor does the article consider the implications of the declarations that the State of Palestine, and not the Palestinian Authority (hereafter ‘PA’), filed with the UN Secretariat to claim its maritime zones of Gaza under UNCLOS, including Gaza Marine.Footnote 6 The State of Palestine not only claimed its maritime zones, but it demarcated its zones precisely with specific coordinates. It warned any state or corporation that might explore or exploit the natural resources in Palestine’s maritime zones that include Gaza Marine.Footnote 7 The article completely ignores the historical facts pertinent to the status of Gaza Marine, including the British occupation of, and mandate over, Palestine (1917–1948), the administration of Gaza by Egypt (1948–1967), the Israeli occupation of Gaza and the West Bank, including East Jerusalem, since 1967, and the illegality of Israel’s continued presence in Gaza, as in the rest of Palestine, as recently held by the ICJ in its 19 July 2024 Advisory Opinion.Footnote 8
If one reviews the position of the Israeli government regarding Gaza’s maritime zones, including its imposition of a naval blockade on Gaza, Palestine’s accession to UNCLOS, and its attempts to thwart development of Gaza Marine, it appears that the article simply serves the interest of the Israeli State authorities’ illegal actions at the expense of academic quality. Such an approach is well-known to Palestinian and critical international legal scholars.Footnote 9 Examples in this respect include questionable legal theories that were advanced by some academics to claim the inapplicability of the four 1949 Geneva Conventions to occupied Palestine,Footnote 10 scholarly contentions as to the non-jurisdiction of the ICC over crimes committed by Israeli nationals within the territory of the State of Palestine,Footnote 11 theories that deny the right of return to Palestinian refugees,Footnote 12 that advance expansive interpretations of the right to self-defence in international law going beyond Article 51 of the UN Charter,Footnote 13 and that raise misleading interpretations of international humanitarian law in relation to the ongoing hostilities in Gaza, and so on.Footnote 14
All these attempts have been rejected by international law authorities, including the ICJ, the ICC, and the vast majority of international law scholars, although Palestinian scholarship on these issues continues to be ignored, if not, suppressed.Footnote 15
2. Setting the record straight
The article’s abstract claims that the Gaza Marine remains undeveloped due to ‘the complicated political status of the Gaza Strip over the past two decades’.Footnote 16 This is not the case. The Gaza fields remained undeveloped due to a succession of Israeli policies dating to 1967, which kept Gaza undeveloped, followed by a complete Israeli blockade on Gaza imposed since 2007, including on Gaza’s air, land, and sea.Footnote 17 Even before the 2007 blockade, Israel treated Gaza as an open-air prison by keeping the territory and its people under permanent surveillance.Footnote 18 Israel also kept the territory underdeveloped. It refused to pay international companies market prices for the gas when these companies offered to develop the gas fields after their discovery in the late 1990s that could have been used to develop the Palestinian territory, including Gaza and its infrastructure.Footnote 19 The developers were faced with an ultimatum: either agree to sell the gas to Israel at below market price or do not sell it at all.Footnote 20 Israel has a vested interest in maintaining the status quo: the provision of gas and electricity are some of the biggest costs for the PA as 87% of the electricity in the West Bank and 50% of the electricity in Gaza comes from Israel and an exorbitant proportion of the PA’s budget is spent on meeting these costs.Footnote 21
The claim as to ‘the PA’s reliance on Israeli gas supply and electricity provision’Footnote 22 fails to mention the reason for that; namely Israel’s illegal control of Palestine’s borders, including free trade with the outside world.Footnote 23 The article asserts that Israel has the ‘contractual right’ to approve of the development of Gaza Marine,Footnote 24 but it is the State of Palestine that possesses the rights to the gas fields. To claim that Israel has a contractual right to approve of the development of Gaza Marine would be tantamount to recognizing that the territory is a sovereign part of the State of Israel. This would amount to an unlawful act, namely, annexation. Hamas, the authority that de facto controls Gaza since 2007, has never objected to, nor could it prevent, the development of the gas fields in Gaza Marine. It is the State of Palestine that can legally develop the Gaza Marine gas fields through contracts with international companies that can be given access to the fields, which are 36 kilometers west of Gaza City, and 603 meters below sea level, via ocean vessels and gas rigs, without a need to set foot in Gaza or obtain permission from Hamas.Footnote 25 The gas could be piped to gas stations via existing lines to Palestine. Excess gas could be piped to Egypt to the gas fired power plant at the city of Al Arish or exported overseas for more favorable prices. The proceeds of the sale of the gas would be split between the investors and the Government of the State of Palestine.Footnote 26 The money made from the gas fields, after it has been recouped from the investors, could be used to offset the costs the Palestinian government has to spend importing gas and electricity from Israel, and develop the Palestinian economy.
Neither the PA, Hamas, nor Israel can claim rights to Gaza’s maritime zones or develop the Gaza Marine. As the State of Palestine acceded to the UNCLOS, none of the three entities relate to the discussion. It is the State of Palestine that has claimed rights to Gaza’s maritime zones under international law in 2015 and 2019.Footnote 27 Gaza is not a disputed territory ‘in which it is unclear who holds rights to the maritime zones in question’.Footnote 28 Gaza forms part of a territory of the State of Palestine that is illegally occupied by Israel.Footnote 29 Under the law of the sea, Gaza’s maritime zones belong to the State of Palestine.Footnote 30 While Israel recognizes the customary status of UNCLOS, and consented to its parameters to delimit its maritime boundaries with Cyprus,Footnote 31 and Lebanon,Footnote 32 Israel (which is a non-UNCLOS party as indicted above) refuses to recognize Palestinian rights under the Convention,Footnote 33 let alone its dispute settlement mechanisms.Footnote 34
Although the article claims that Palestine’s statehood lies outside its scope, the matter cannot be avoided, as statehood is essential to the legal aspects pertinent to Gaza Marine.Footnote 35 In particular, Palestine cannot accede to UNCLOS without being a state at least for the purpose of the Convention. No rights can be claimed under UNCLOS by the PA as an authority unless such an authority is considered as the legitimate government of the State of Palestine.
Accordingly, our reply broadly follows the structure of the original article, with two additions, addressing the issue of self-determination and statehood. We begin by providing the historical background to Gaza Marine, and the legal status of the maritime areas of Gaza in the context of a prolonged, entrenched and unlawful belligerent occupation. Each section tackles the factual errors, misleading legal arguments, and misinterpretation of the law to set the record straight.
3. Gaza Marine and self-determination in the context of belligerent occupation
The right to self-determination is mentioned only once in the article, and in passing,Footnote 36 even though it is a recognized right of the Palestinian people, which has implications for and even negates almost every argument the article makes.Footnote 37 It is only through the denial of that right, the denial of the applicability of the law of occupation and the very illegality of that occupation as well as the denial of Palestine’s statehood, that a discussion of the so-called ‘unique legal complications surrounding the postwar development of offshore energy resources’Footnote 38 of Gaza can even be advanced. In its 2024 Advisory Opinion, the ICJ affirmed Israel’s status as the Occupying Power ‘over the entirety of the Occupied Palestinian Territory’, and that it has the obligation not to impede the Palestinian people from exercising their right to self-determination.Footnote 39 The Court considered the right to self-determination, particularly in the case of foreign occupation, a peremptory norm of international law, whose violation entails obligations upon the entire international community.Footnote 40 These obligations include collectively bringing an end to the breach of the peremptory norm, non-recognition, and not rendering aid or assistance in maintaining that situation, all of which negate the scenarios hypothesized in the article.Footnote 41
Significantly, the ICJ indicated that the right to self-determination entails the right to ‘exercise permanent sovereignty over natural resources … a principle of customary international law’.Footnote 42 The Court found that through depriving Palestinians from enjoying their natural resources for decades, Israel has impeded their right. Moreover, if the occupying power exploits the natural resources in occupied territory in violation of the laws of occupation, it further violates the principle of permanent sovereignty over natural resources.Footnote 43 The forced dependence of the whole of the Occupied Territory, particularly Gaza, on Israel for basic goods and services has impeded the right of the Palestinian people to self-determination and obstructs their right ‘to pursue its economic, social and cultural development’.Footnote 44 According to the Declaration on the Right to Development and the draft International Covenant on the Right to Development, the right to development implies the full realization of the right of all peoples to self-determination. Accordingly:
States shall take resolute steps to eliminate the massive and flagrant violations of the human rights of peoples and human beings affected by situations such as those resulting from apartheid, all forms of racism and racial discrimination, colonialism, foreign domination and occupation, aggression, foreign interference and threats against national sovereignty, national unity and territorial integrity, threats of war and refusal to recognize the fundamental right of peoples to self-determination.Footnote 45
While the ICJ found Israel’s presence in the territory of Palestine illegal and requiring that Israel ends it immediately, until Israel does so the laws of occupation remain in force. This means that under customary international law, as the occupying power, Israel is only an administrator and usufructuary of natural resources for the benefit of the occupied population and Israel shall ‘safeguard the capital’ of these resources, as enshrined in Article 55 of the Hague Regulations, which reflect customary international law.Footnote 46 The International Law Commission also affirms that ‘[t]he environment and natural resources of people under … occupation shall be protected’.Footnote 47
As regards the ‘Oslo Accords’ (named after the capital city of Norway that sponsored the secret negotiations that led to the first direct Israel–Palestine agreement), which we address below, these agreements do not grant Israel rights based on so-called security concerns. First, in the 19 July 2024 Advisory Opinion, the ICJ stated explicitly that ‘Israel may not rely on the Oslo Accords to exercise its jurisdiction in the Occupied Palestinian Territory in a manner that is at variance with its obligations under the law of occupation’.Footnote 48 While security features in the law of occupation, as Judge Tladi notes, ‘security interests as such, no matter how serious or legitimate, cannot override rules of international law …. Indeed, save where called for by a specific rule, security concerns cannot even serve as a balance against rules of international law’.Footnote 49 Moreover, in interpreting the Oslo Accords, Article 47 of the Convention IV relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949)Footnote 50 has to be taken into account, which stipulated that the protected population ‘shall not be deprived’ of the benefits of the Convention ‘by any agreement concluded between the authorities of the occupied territories and the Occupying Power’.Footnote 51
4. Historical background on Gaza Marine
Gaza has a long history with a special relationship to the sea, which long predates the Israeli occupation that began in 1967. Gaza, and its port, is one of the oldest coastal destinations in the world.Footnote 52 Located at a crossroad for Africa, Asia, and Europe, Gaza has been for millennia a significant hub for empires, traders, cultures and science.Footnote 53 The Gaza Sea formed an integral part of Palestine under the Ottoman and British empires. This historical fact is crucial for appreciating the current status of Gaza, its land and sea, as part of the Occupied Palestinian Territory.
The British Empire under the Palestine Mandate before 1948, in particular, tried to regulate the maritime affairs for Palestine. The British authorities elevated the codification of maritime affairs beyond that of their Ottoman predecessor, likely because Palestine under the League of Nations Mandate acquired its distinctive territorial status and as Britain was the world’s maritime hegemon.Footnote 54 The British High Commissioner for Palestine enacted provisions for Palestinian ports under the Ports Ordinance No. 114 of 1 April 1926.Footnote 55 Based on this, a British Order inaugurated the Gaza Port on 4 October 1945.Footnote 56 Britain simultaneously adopted legislation relative to the carriage of goods by sea in January 1926,Footnote 57 and established a maritime court in February 1937.Footnote 58 Fisheries Ordinance No. 6 of 18 February 1937 equated the territorial waters of Palestine as the zone reserved for fishing.Footnote 59 Israel, as an occupier of Gaza, is obliged to retain this legislation and impose no restrictions on the Palestinian use of Gaza’s sea, including its gas fields, under Article 43 of the 1907 Hague Regulations, which reflects customary international law.Footnote 60
The article similarly ignores the fact that Egypt administered Gaza after the British withdrawal in May 1948 until the Israeli occupation in June 1967.Footnote 61 As early as June 1948, the Egyptian Government imposed a closure on the Gaza Sea but permitted fishing. In 1951, Egypt eased the closure somewhat but continued to criminalize the entry of merchant ships into, or departure from, Gaza port without a permit ‘from competent authorities’.Footnote 62 These restrictions were motivated by security concerns as Egypt remained in a state of war with Israel. However, Egypt claimed no sovereign rights over the Gaza Sea, implicitly indicating that the sea is solely the right of the Palestinian people as the sovereignty over the Gaza territory was vested in the Palestinians.
One of the major Israeli attempts to manipulate history is the claim that the blockade of Gaza started in 2007, ignoring 30 years of a total maritime blockade that started in 1967. From the outset of its occupation until the withdrawal of its forces from parts of Gaza after the establishment of the PA in 1994, Israel imposed a blockade on the Gaza coast with a total ban on the entry or departure of ships from Gaza’s territorial waters.Footnote 63 Israel enacted a series of military orders to restrict fishing activities by Gazans, focusing on a permission regime for the fishers.Footnote 64 Israel prohibited fishing boats from entering specific locations.Footnote 65 It banned fishers from exiting the zone beyond the three-mile seaward and it halted fishers from using boats with specific engines, focusing on slow boats, with maximum speeds of 20 horsepower.Footnote 66 Several Israeli military orders were dedicated for the ‘regulation’ of swimming on beaches, prohibiting the entry of swimmers to more than 300 meters seaward even in the designated swimming blocs.Footnote 67 These measures prevented the development of Gaza’s maritime zones, including the exploration of its natural resources, from the outset of the Israeli occupation, until the PA entered the scene in the 1990s when international companies discovered large quantities of gas off Gaza’s coast.Footnote 68
The above discussion reveals that the issue of the Gaza Sea appeared in the Oslo Accords as a matter of security and, at best, as a potential for economic development, particularly fishing. By no means were the Accords meant to determine the status of the Gaza Sea, neither temporarily nor permanently. The Accords largely maintained the status quo created by Israel during the years of occupation beginning in 1967. For example, the maximum that the Accords gave to the Palestinians concerning fishing (20 nautical miles) equals 10% of the 200 nautical miles of the exclusive economic zone (EEZ) as a sovereign right for coastal States under UNCLOS. The Oslo-allocated zone has been shrunk, in reality to much less than that limit.
Article VII, paragraph 4, of the Declaration of Principles on Interim Self-Government Arrangements, signed at Washington, DC, between Israel and the Palestine Liberation Organization (PLO) on 13 September 1993, known as ‘Oslo I’, provided the basis for the PA to establish ‘a Gaza Sea Port Authority’.Footnote 69 In Annex III, titled ‘Protocol on Israeli–Palestinian Cooperation in Economic and Development Programmes’, the parties agreed to establish an Israeli–Palestinian Continuing Committee for Economic Cooperation, which empowered the Palestinians to establish ‘a Gaza Sea Port Area’.Footnote 70 On 8 December 1999, late Palestinian President Yasser Arafat (1929–2004) founded the ‘Sea Port Authority’.Footnote 71 Arafat reinstated the ‘Port of Gaza’ through Decree No. 1 of 30 April 2000.Footnote 72 Article 2 of the Decree provided that the Port Authority shall enact ‘bylaws and instructions to give effect to the decree’. Despite enacting these instruments, the Sea Port Authority or the new Port of Gaza did not materialize for two reasons. First, Arafat’s enactments coincided with the outbreak of the second uprising (intifada) that continued from 2000 to 2005, which led to the deterioration of relationships between Palestine and Israel, during which time the latter imposed a fresh set of restrictions on the Gaza coast. Second, the Sea Port Authority has been accorded a limited mandate under the Accords.
Regardless of the Oslo Accords’ stipulations, the original Port of Gaza has existed for decades. Its creation and dimensions had been fixed by the British-enacted Gaza Port Order of 1945, under the Ports Ordinance of 1926, both mentioned above. The purpose of establishing the new Sea Port Authority and the new Gaza Port served to enlarge and modernize the Gaza Port and enable Palestinian and foreign ships to navigate Gazan shores. This projected function proved impracticable due to strict Israeli control over the sea following the creation of the PA. Thus, the Palestinian government decided to merge the Ports Authority on 23 May 2006 with the Ministry of Transport.Footnote 73
The Israeli–Palestinian Interim Agreement on the West Bank and the Gaza Strip of 28 September 1995, known as ‘Oslo II’, elaborated details regarding the ‘Sea of Gaza’.Footnote 74 Article XIV of Annex I, titled ‘Security along the Coastline to the Sea of Gaza’, recognizes a fishing limit of 20 nautical miles from the Gaza shore seaward. However, in the north of Gaza, a maritime zone marked as ‘K’, with 1.5 nautical mile breadth, was designated as a buffer space along the Israeli side of the sea. In the south, a zone called ‘M’, one nautical mile wide, was allocated as a buffer area along the Egyptian waters. Both zones were assigned as ‘closed areas, in which navigation was to be restricted to activity of the Israel Navy’. The offshore area between these two zones was designated as ‘Zone L’, open for Palestinian fishing, recreation, and economic activities.Footnote 75
As to foreign ships, Oslo II provided that ‘[f]oreign vessels entering Zone L will not approach closer than 12 nautical miles from the coast’.Footnote 76 An exception had been made for such ships to enter the Gaza Port after its establishment,Footnote 77 but, as noted above, the new Port was never set up. Despite the Palestinian Naval Police formed to address maritime concerns and criminal activity, Oslo II permitted the ‘Israel Navy vessels [to] sail throughout these [three] zones, as necessary and without limitations’.Footnote 78 The Palestinian Police were allowed to operate only ten boats, with limited speed and weapons, up to six nautical miles. In extraordinary cases and, with special Israeli permission, the range could extend to 12 nautical miles.Footnote 79 Pending the construction of the Gaza Port, ‘arrangements for entry and exit of vessels passengers and goods by sea, as well as licenses for vessels and crews sailing on international voyages in transit to the West Bank and the Gaza Strip, shall be through Israeli ports under the relevant rules and regulations applicable in Israel’, a situation that maintained Israel’s commercial and security monopoly.Footnote 80 At the end of April 2002, Israel foisted tighter limits on Palestinian fishing. In August that year, UN Secretary-General Humanitarian Envoy Catherine Bertini reported that she obtained a commitment from Israel to permit a 12-mile fishing zone offshore Gaza.Footnote 81 In reality, the 12-mile limit was not respected.
Despite its so-called ‘Disengagement Plan’ in September 2005, Israel retained its siege on Gaza,Footnote 82 while claiming that it ended its occupation,Footnote 83 and further claiming that the Oslo Accords were still applicable.Footnote 84 According to Article 42 of the 1907 Hague Regulations, ‘territory is considered as being occupied when it is actually under the authority of the hostile army’. The end of occupation occurs when the occupier’s military ceases holding any de facto control,Footnote 85 or negotiates an agreement restoring sovereignty to the ousted sovereign – the State of Palestine.Footnote 86 Thus, Gaza remains an occupied territory under international law.Footnote 87 In April 2006, the Israeli navy began enforcing a ten-mile limit on Gaza fishers, and, in October, it reduced the limit into six miles.Footnote 88
In 2007, Israel declared Gaza ‘hostile territory’ and reduced the supply of goods and electricity to the territory.Footnote 89 This followed the seizure of Gaza by Hamas, after Israel had exploited intra-Palestinian divisions between Hamas and Fatah, the two rival political parties, by leaking stories to the media of an impending Fatah coup.Footnote 90 In 2009, the Report of the UN Fact-Finding Mission on the Gaza Conflict (‘The Goldstone Report’) discussed the status of Gaza, finding that ‘Israel has without doubt at all times relevant to the mandate of the Mission exercised effective control over the Gaza Strip’.Footnote 91 The Report went on to recount the degree of control Israel exercises over Gaza, which applied even during the so-called disengagement in 2005:
Given the specific geopolitical configuration of the Gaza Strip, the powers that Israel exercises from the borders enable it to determine the conditions of life within the Gaza Strip. Israel controls the border crossings (including to a significant degree the Rafah crossing to Egypt, under the terms of the Agreement on Movement and Access) and decides what and who gets in or out of the Gaza Strip. It also controls the territorial sea adjacent to the Gaza Strip and has declared a virtual blockade and limits to the fishing zone, thereby regulating economic activity in that zone.Footnote 92
It concluded that ‘[t]he ultimate authority over the Occupied Palestinian Territory still lies with Israel’ even with a local Palestinian administration, as it does not have full authority.Footnote 93 Hence, international humanitarian law continued to apply in Gaza as an occupied region.Footnote 94
Israel maintained its military dominance over Gaza’s territorial waters, along with its airspace, while also restricting the entry of persons and supply of products and services.Footnote 95 It upheld the ban on foreign ships that attempted to enter the Gaza Port, attacking such ships or dragging them into Israeli ports.Footnote 96 A notable instance of this policy occurred in 2010 with the Turkish ship the MV Mavi Marmara and the accompanying flotilla of boats were attacked by the Israeli navy in international waters when nine peace activists were assassinated.Footnote 97 This incident triggered considerable global attention, including UN probes that addressed the legality of the blockade,Footnote 98 and involved proceedings brought by the Comoros (under whose flag the MV Marmara sailed) at the ICC, before these proceedings were discontinued by the Prosecutor for lack of ‘gravity’.Footnote 99 In June 2025, similarly, the Israeli military seized Gaza bound aid vessel, Madleen, that carried 12 international peace activists and dragged it to an Israeli port before reaching its destination.Footnote 100
The article claims that Gaza is no longer occupied after the Israeli withdrawal in 2005. Yet, in its 2024 Advisory Opinion, the ICJ presented a more complex picture: ‘Israel’s withdrawal from the Gaza Strip has not entirely released [Israel] of its obligations under the law of occupation… [which] remain[ed] commensurate with the degree of its effective control over the Gaza Strip’.Footnote 101 Even before the Advisory Opinion, the vast majority of legal experts as well as international organizations held that Gaza was still occupied.Footnote 102 Only a minority held that it was not.Footnote 103
5. The legal status of the maritime areas of Gaza
After its accession to UNCLOS in 2015, Palestine acquired exclusive right over its maritime zones, including Gaza Marine. The State of Palestine filed declarations with the UN Secretariat in 2015 and 2019 to claim, and unilaterally delimit, Palestine’s maritime zones offshore Gaza as regulated by the Convention. The article fails to situate the context surrounding what it termed a ‘breakthrough’ regarding the negotiations between Palestine and Israel over Gaza Marine in 2023. At least three factors contributed to that perceived ‘breakthrough’. One is the 2022 Russian war on Ukraine that led to the shortage of the global gas supply, particularly to Europe.Footnote 104 Second, the accession of Palestine to UNCLOS that makes it illegal for any state or company to operate in the Palestinian maritime zones, including Gaza Marine, without Palestine’s consent.Footnote 105 Last, the formation of East Mediterranean Gas Forum that included several European and Mediterranean states that cannot ignore the self-evident existence of Palestine as a key regional coastal player.Footnote 106
In the article, it is claimed that ‘the Oslo Accords granted Israel the right to prohibit transit in the maritime areas allocated to the PA’.Footnote 107 The article further asserted that ‘the parties essentially consented to derogate from UNCLOS when they signed the Oslo Accords. This can be done under the rules of UNCLOS, such as Article 311, as it does not reflect jus cogens rules’.Footnote 108 ‘Consequently’, the article claims that ‘Israel could approve or refuse activities in these zones if such an action is reasonably linked to security considerations. Therefore, Israel’s approval of the development of the Gaza Marine gas field is within its rights under the Oslo framework’.Footnote 109 These statements are simply incorrect. The Oslo Accords regulated the security aspects relating to the use of the Gaza Sea for a period not exceeding five years. The Accords did not include any provision relating to the sovereignty over, or ownership of, the Gaza Sea, its EEZ, or continental shelf, as explained above. The status of maritime zones, which forms part of the issue of the precise boundaries of Palestine, were explicitly deferred for the final status stage of negotiations,Footnote 110 leaving the status quo regarding Palestine’s maritime sovereignty intact.Footnote 111 The Accords, therefore, did not grant Israel a ‘right to prohibit transit in the maritime areas allocated to the PA’.Footnote 112 It is unclear on which basis the authors can give themselves the authority to conclude that ‘the parties essentially consented to derogate from UNCLOS when they signed the Oslo Accords’.Footnote 113
Three reasons can be advanced to rebut this argument.
First, both Israel and Palestine were not parties to UNCLOS at the time of the Oslo Accords. Israel is still not a party. It is thus logically impossible to claim that the parties have mutually consented to any provision of the Convention.
Second, nowhere in the Oslo Accords can one find mutual consent to derogate from the Convention (UNCLOS was not even mentioned in the Accords). On the contrary, as the issue of maritime zones formed part of the boundaries, as just indicated, it was intentionally kept outside the Accords.
Third, the article wrongly interprets Article 311 of UNCLOS. While it is true that Article 311 allows ‘State Parties’ (the PLO that signed Oslo Accords in 1995 was not a ‘state’ and not ‘party’ to the Convention) to conclude special agreements that differ from certain provisions of UNCLOS, paragraph 2 of that article makes it clear that any bilateral agreements should be ‘compatible with this Convention’.Footnote 114 Evidently, the maritime provisions of the Accords are incompatible with the maritime zones regulated by UNCLOS. There was no mention of such zones, let alone derogating from Palestinian rights from these zones, in the Accords. Moreover, the article ignores the two limitations on derogation enumerated in Article 311(3). These are, first, that the derogation should be compatible ‘with the effective execution of the object and purpose of this Convention’, and, second, that ‘such agreements shall not affect the application of the basic principles embodied herein’.Footnote 115 It is obvious that the maritime provisions of the Accords have precluded Palestine from exercising its rights recognized under UNCLOS, such as using its territorial waters as well as its continental-shelf and EEZ, which affect the application of the basic principles of the Convention, including the ability to secure the contiguous zone, and exercising sovereignty over incoming and outgoing foreign and national ships. Depriving the Palestinians, as an occupied population, from their maritime zones and the natural resources therein would in turn run contrary to the standards of derogation permitted under international humanitarian law, particularly the customary rule of Article 43 of the 1907 Hague Regulations, whose only permissible criterion for derogation is to preserve the welfare of the occupied population.Footnote 116
In fact, the article follows the formal position of the Israeli government in this respect. Israel contended in 2020 that the Palestinians possess no maritime powers except those stipulated in the ‘Israeli–Palestinian agreements which clearly define the scope of rights and obligations in the relevant maritime area’,Footnote 117 unequivocally asserting that the ‘Palestinian entity’ cannot claim any maritime rights based on UNCLOS.Footnote 118 Indeed, under the law of the sea, a range of issues can be regulated by regional, sub-regional, or bilateral treaties in lieu of the Convention’s arrangements.Footnote 119 Although its entry into force coincided with the adoption of the Oslo Accords, UNCLOS was off the negotiation table. Nevertheless, the maritime arrangements of the Accords, which assign the Palestinians a maximum of 20 nautical miles seaward designated for fishing without any sovereignty whatsoever,Footnote 120 cannot be, in law, considered as a bilateral agreement for two reasons.
First is that the Oslo Accords were meant to be a temporary arrangement for five years, ending in May 1999. By no means was it intended to create a permanent status.Footnote 121 On the contrary, as indicated above, the issue of borders (including maritime zones) was reserved for further negotiations, indicating that the status quo remains intact. The Accords’ arrangements represent, primarily, security and economic features as a preparation for an elevated stage projected to lead to Palestine’s independence. Such recognized independence implies the Palestinian sovereignty over, among other areas, maritime zones.
Secondly, and more significantly, Geneva Convention IV, to which both Israel and Palestine are parties,Footnote 122 prohibits derogation from fundamental humanitarian law rules based on special agreements. In this connection, Article 7 of the Convention prescribes that ‘[n]o special agreement shall adversely affect the situation of protected persons …, nor restrict the rights which it confers upon them’.Footnote 123 As the territorial sea forms an integral part of the riparian land and as resources contained in maritime zones compose sovereign rights of the Palestinian people,Footnote 124 any bilateral agreements that infringe these rights can be considered invalid.Footnote 125 Thus, it has been aptly concluded that ‘the conventional rules [of the Oslo Accords] on the governance of the territorial sea off the Gaza Strip cannot derogate from the law of occupation, but, rather, must be interpreted in a manner compatible with both the Hague Regulations and the Fourth Geneva Convention’.Footnote 126
6. Gaza Marine and the statehood of Palestine
In their introduction, the authors of the article noted that they would ‘not address the question of Palestine’s statehood’. However, their article addresses the issue of statehood by claiming that since ‘the PA statehood status is disputed, arguably, it is not entitled to maritime zones’.Footnote 127 Clearly the article considers the PA a non-state actor, not the government of the State of Palestine, and disputes its ability to become a party to international treaties. In fact, the State of Palestine acceded to the Convention as a state and not as a non-state actor.
It must be recalled that, pursuant to the Oslo Accords, Israel invited the PLO to return to Palestine (the PLO was established in Jerusalem in 1964) to perform state-like capacities through the creation of a Palestinian government (i.e., the PA). The decision to invite the PLO to return was consequential, as the PLO was an organization that has been established to ‘enable its people to exercise national sovereignty and freedom’ in Palestine.Footnote 128 The lack of control of that government over certain areas or affairs provided for in the Accords for a five-year interim period did not imply Palestinian acceptance of the on-going occupation, or its perpetuation, but reflected the occupier’s forceful domination.Footnote 129 Indeed, ‘[n]o territorial acquisition resulting from the threat or use of force shall be recognized as legal’.Footnote 130 Occupation therefore does not diminish statehood entitlement or alter the sovereignty of the occupied state.Footnote 131 Since the temporal lapse of the Accords over two decades ago, circumstances have substantially changed.Footnote 132 Palestine meets the requirements of statehood in international law and has exercised governance for more than 30 years over all major Palestinian cities and towns.Footnote 133 Externally, it became a member of a dozen international organizations, acceded to over a hundred treaties and is recognized as a state by most states in the world, as well as by a number of intergovernmental organizations. It established or enhanced its diplomatic missions worldwide. It hosts numerous embassies. In the same vein, it claims its maritime zones under UNCLOS and exercises its prerogatives therefrom as any state party.Footnote 134
While the article argues that ‘the PA was entitled to a continental shelf prior to its ratification of UNCLOS in 2015, and thus had sovereign rights in the continental shelf maritime zones’,Footnote 135 it denies that the PA possesses the same sovereign rights over EEZ prior to 2015. The authors should have, logically and legally, recognized the PA’s right to claim both a continental-shelf and an EEZ because both zones are located in the same area, one on the sea floor and the other on the surface, and virtually have the same status as far as the rights of coastal state boundaries are concerned.Footnote 136 It is unclear why the article makes this distinction, especially as it discusses the issue of gas reserves located in Gaza Marine that can be found in the continental-shelf that can be accessed from Palestine’s EEZ. It is similarly unclear why the article makes the distinction between the periods before and after the 2015 Palestinian declarations as the article addresses the future of the Gaza Marine that would be determined in the future, not before 2025 at best.
The article is also contradictory when it claims that the PA declarations under UNCLOS are ‘unlawful’.Footnote 137 The article likewise claims that the ‘Accord does not affect the PA’s rights under UNCLOS, [as] it does limit in practice exercising these rights as it narrows the areas for utilization and the PA’s access to them’.Footnote 138 However, nowhere in the Accords can one find any regulation of Gaza’s continental-shelf or EEZ, let alone restricting Palestine’s rights to these zones. This claim is unsupported by facts and the law. It is the State of Palestine, not the PA, that ‘acceded’ to (not ‘ratified’ as the article erroneously mentioned) UNCLOS and filed the two declarations (not only one) defining Palestinian maritime zones offshore Gaza. These declarations were published in the Law of the Sea Bulletin. Palestine has participated in the annual meetings of the UNCLOS State Parties since the twenty-fifth meeting (June 2015), in accordance with Article 319/2(e) of the Convention.Footnote 139 Palestine also participated in the last meeting that was held in June 2024.Footnote 140
The article superficially attempted to cast doubts on the straightforward status of the Gaza maritime zones by claiming that ‘the political situation in Gaza since 2007 may have rendered the PA’s declarations of maritime zones unlawful under LOS [law of the sea], as it has had no control over Gaza since then’.Footnote 141 Without a convincing legal reason, the article ignores the fact that the State of Palestine, not the PA, made the 2015 and 2019 maritime declarations under UNCLOS, as just indicated. It added another false claim by stating that ‘sovereign rights in maritime zones stem from sovereignty over the land territory to which these zones are connected. Since the PA has no control over Gaza and arguably no sovereignty, it essentially loses the nexus to the maritime zones’.Footnote 142 The article conflates the issue of sovereignty connected to the existence of a state and its people, with the exercise of sovereignty by a government, which is unlawfully occupied by another state that has manifested an intention to unlawfully annex it.Footnote 143 Furthermore, irrespective of the issue of statehood and governance, it is the Palestinian people who enjoy sovereignty over their territory and sovereign rights over their maritime zones under international law.
7. Conclusion
The law pertinent to the Gaza Sea is clear-cut. Gaza, its land and sea, forms part of Palestine, a state party to UNCLOS. Under this Convention, Palestine possesses all sovereign prerogatives, including title over, and exploration of, Gaza Marine, in the same footing as any other state party. Thus, Palestine can claim and delimit the maritime zones off Gaza, and it did so pursuant to its accession to UNCLOS. Palestine can, in law, grant contracts to any state or company to explore Gaza gas fields. Preventing Palestine from exercising its sovereign maritime rights and exploiting its resources is due to the State of Israel’s unlawful acts that violate international law, seemingly with impunity. This wrongfulness, in turn, triggers state responsibility of Israel towards Palestine as an injured state, with its attendant legal consequences. Accordingly, the State of Israel must cease its wrongful acts by lifting the Gaza blockade, removing the unlawful restrictions on Palestine’s usage of its maritime zones and its access and use of its natural resources, and compensate Palestine for the losses sustained from denying the exploration of its natural gas.
Open access
