Repercussions on Israeli-Palestinian conflict South China Sea arbitral award

In the recently decided maritime dispute between China and the Philippines, the arbitral tribunal award's repercussions have been deeply followed by countries in the Asia-Pacific, including Vietnam, Malaysia, Japan, Brunei and Australia.

Thousands of miles away, they should be equally followed by Israel. Most important were the tribunal's remarks that artificial islands do not confer maritime rights and that historic title claims over contested areas should be rejected. Both pronouncements should be seen as linked to Israeli policies towards the future of the West Bank and Gaza.

On Gaza, Israeli plans, as reported recently in the international press, call for the creation of an artificial island off Gaza's shores. Israel sees in this initiative a way to address Gaza's economic woes as well as link the Strip with the rest of the world, following blockades imposed both by Israel and Egypt after Hamas seized power in 2007. The island would include a seaport and also a future airport.

Such a proposal, voiced by none other than Israel's Transportation Minister Yisrael Katz, should be welcomed as a way to ease the plight of Gaza's population. But based on the South China Sea award, any thoughts of Israeli sovereignty over the waters surrounding such an island should be negated.

China was found to violate the Philippines' maritime rights because it intruded into the latter's exclusive economic zone. Similarly, Israel could be found to be intruding on Palestinian maritime rights if it purported to conduct security patrols and checks around this island. Israel would likely not be entitled to argue that because it built the island, it should be rendered responsible also for its security.

On these grounds, Mr Katz has argued that the island will be built in international waters. Yet, in the case of Gaza, international waters start beyond 20 nautical miles. It is doubtful whether the creation of an airport and a port so far from Gaza's coast would be of any utility.


Palestinians at a rally in the West Bank. The recent arbitral tribunal's ruling on artificial islands and historic claims in the South China Sea carry significant implications for Israeli policies towards the future of the West Bank and Gaza.PHOTO: AGENCE FRANCE-PRESSE

Furthermore, with gas supplies discovered only a bit north of Israel's shore, one should not exclude the possibility that the discovery of such supplies off Gaza's shore could also introduce economic parameters in the future. Israel should be aware that the creation of an artificial island would not bring it closer to future exploitation of such supplies.

China was found to violate the Philippines' maritime rights because it intruded into the latter's exclusive economic zone. Similarly, Israel could be found to be intruding on Palestinian maritime rights if it purported to conduct security patrols and checks around this island.

This does not mean that Israel should abandon such artificial island plans. It does mean though that the engagement of the Palestinians should be sought before any island construction. Unlike the 2005 Gaza disengagement, any process cannot be unilateral.

On historic claims aspects that have undergirded the Israeli- Palestinian conflict, the arbitral award has much to offer too. When it comes to the debate in Israeli politics on the future of the West Bank, Israeli right-wing parties have underlined the fact that the relevant area comprises historically Judea and Samaria, where Jewish political and economic independence was established for centuries, going back almost 3,000 years.

United Nations organs, on the contrary, judicial and political alike, have opted to see the West Bank strictly legally, bereft of any historic ties, as a piece of land under belligerent occupation.

The China-Philippines arbitral award points to the way history's legal role should be seen. The arbiters reached the conclusion that inside the contested sea areas, Beijing does not have any historic claims, because any such contentions negate the arrangements the UN Convention on the Law of the Sea has put in place. In other words, historic rights exist, but cannot negate the law as agreed by states and the international community. It is exactly this point that Israel, Palestine and UN organs must internalise regarding the West Bank.

Only then can all the stakeholders in the conflict - as well as UN organs like the International Court of Justice and the UN Security Council - come to understand that historic reality as seen by international law underlines two things: the belligerent occupation of the West Bank and the Jewish rather than Palestinian character of some of its monuments. And this - if properly digested - can be one of the award's wider, "historic" contributions.

  • The writer is currently at King's College London Dickson Poon School of Law, and a former member of the Knesset (Israeli Parliament) legal department in charge of international and constitutional issues.
A version of this article appeared in the print edition of The Straits Times on July 29, 2016, with the headline 'Repercussions on Israeli-Palestinian conflict South China Sea arbitral award'. Print Edition | Subscribe