A peace agreement and full normalization between Israel and Lebanon still seems like a far-off dream. Still, let’s dream together about the legal aspects of such an agreement.
- How are Treaties Ratified in Israel?
In Israel, the government is authorized to sign and ratify international treaties. Treaty ratification is not anchored in legislation but in the practice formed over the years. Although there is no obligation to have the Knesset vote in favor of an agreement, the government customarily brings important treaties before the Knesset for approval.
BASIC LAW: THE PRESIDENT OF THE STATE – 5724-1964 stipulates that the President: “Shall sign treaties with foreign states approved by the Knesset”.[1] The Kamier ruling is the primary piece of jurisprudence to interpret the Basic Law’s provisions. The plaintiff in that case, who was declared extraditable to Switzerland, argued that the extradition agreement between Israel and Switzerland was invalid, on the grounds that according to the Basic Law of the President, agreements are dependent on Knesset rather than government ratification. The Israel Supreme Court upheld the existing framework, and ruled that the Basic Law’s provisions should be interpreted narrowly. Only under particular circumstances, where the government itself sought Knesset approval, would such ratification be required. Consequently, only the government is authorized to negotiate, sign and ratify treaties, based on the residual authority of government as laid out in the Basic Law on the Government.
According to the Israeli government’s rules of procedure, any minister wishing to submit a proposal to ratify an international treaty must file, two weeks in advance, duplicate copies of the treaty draft and its main points, translated to Hebrew, to the Knesset Secretariat, to be brought to the attention of Knesset members. After the two-week period, the minister must submit to the Cabinet Secretary a draft decision regarding the ratification of the treaty, alongside the treaty’s translation, its main points, an explanatory memorandum, and the positions of the Attorney General and the Ministry of Foreign Affairs. The government may decide to bring an international treaty before the Knesset for approval, on account of its importance.[2]
Residual authority is a constitutional principle that grants the government the power to act on matters that are not explicitly regulated by a specific law. It is a sort of “tool box” that allows the government to administer the state flexibly without waiting for new legislation to pass on each and every step it takes. The source of this authority is located in Article 32 of BASIC LAW: THE GOVERNMENT – 5761-2001.
- What is the Knesset’s Role?
As mentioned, the Knesset has no official role in ratifying treaties. However, the government has historically sought Knesset approval for the peace agreement with Egypt (1979), the peace agreement with Jordan (1994) and the Abraham Accords with the UAE (2020). At the same time, in its ruling on the gas agreement with Lebanon, the Supreme Court rejected the claim that the government was obliged to bring it before the Knesset. The Court pointed to a series of important international treaties that were not submitted to the Knesset for approval, including the agreement transferring authorities from Israel to the Palestinians; the agreement on a temporary international presence in Hebron; the protocol on safe passage between Gaza and Judea and Samaria; and the understandings on building a sea port in Gaza.[3]
It is likely that the government would bring a peace deal to the Knesset for approval if such were reached with Lebanon, but there is no legal obligation to do so.
- BASIC LAW: REFERENDUM and its Impact on an Agreement
Aside from the governmental and parliamentarian ratification procedure, in Israel there is another significant constitutional hurdle that must be cleared when it comes to conceding land governed by Israeli law. BASIC LAW: REFERENDUM – 5774 – 2014 states that should the government sign an agreement or ratify a resolution according to which Israeli law, jurisdiction and administration will no longer apply to a territory in which they currently apply (in other words, a concession of sovereign lands), special approval is necessary in one of the following two forms:
- Knesset approval by a qualified majority: At least 80 Knesset Members must vote in favor of the agreement.
- Referendum: should an agreement gain majority approval (61 or more) but fall short of the required 80, the agreement must be ratified by a nationwide referendum.
Relevance to an agreement with Lebanon: While maritime boundaries are not generally considered sovereign territory requiring a referendum (as the Supreme Court ruled on the gas agreement with Lebanon, contrary to Kohelet Forum’s professional position[4]), a land peace deal including border adjustments or a settlement of the “disputed points” along the Blue Line may raise the legal question of the territory’s status. Should the proposed arrangement include territory defined as part of Israeli sovereignty (such as in the Mount Dov area or locations overlapping Golan Heights territory where the Golan Heights Law applies), the ratification process will be considerably more complex, and require compliance with the Basic Law’s conditions.
- Abolishing Lebanon’s Designation as an Enemy State
Another vital legal step on the way to full normalization is to cancel Lebanon’s designation as an “enemy state”, a status anchored today in the Trading with the Enemy Ordinance – 1939, and representing a major criminal and economic obstacle. This British Mandate-era ordinance outlaws any commercial, business or financial ties with Lebanon and its citizens. Without changing this status or issuing a general permit by the Minister of Finance, it will be impossible to implement basic aspects of peace such as opening flight routes, mutual investments or direct banking connections. Such a change would have broad implications across the Israeli legal system, since the “enemy” designation impacts both the 1952 Entry into Israel Law governing tourist and business entries, and the 2022 Citizenship and Entry into Israel Law that imposes strict restrictions on granting status to citizens of states considered hostile. Therefore, in order to transform any agreement from a diplomatic declaration to a living, civil and economic reality, a comprehensive statutory adjustment must be made to remove the restrictions currently imposed on Lebanon as a hostile entity, to enable commercial and legal activity between the two countries.
In summation, despite the fact it doesn’t seem likely that Israelis will imminently be eating hummus in Beirut, we do have the legal solutions in hand if such an unlikely scenario does unfold.
[1] BASIC LAW: THE PRESIDENT OF THE STATE – 5724-1964 Art. 11 (a) 5, https://m.knesset.gov.il/EN/activity/documents/BasicLawsPDF/BasicLawThePresident.pdf .
[2] Takanon Avodat Ha Memshala [Government Rules of Procedure] 36, para. 10.
[3] HCJ 22-6654 Kohelet Policy Forum v. the Prime Minister, para. 11-13, Sohlberg Opinion.
[4] Ariella Segal “Basic Law: Referendum Applies to Transferring a Portion of Israel’s continental shelf to another state” [Hebrew], ICON-S-IL Blog (18.8.2022).
