Russian President Vladimir Putin in a meeting in Moscow, Russia, on January 9, 2023.

Mikhail Klimentyev, Sputnik, Kremlin Pool Photo via AP

• A new survey of foreign-policy experts found that 46% think Russia will fail or break up by 2033.
• The Ukraine war highlights the possibility of “internal problems” in Russia, said one author.
• A majority of the experts surveyed also believe that China will invade Taiwan within 10 years.

Nearly half of top foreign-policy experts think Russia will become a failed state or break up by 2033, according to a new survey by the Atlantic Council think tank.

The Financial Times was the first to report on the findings, which seem to suggest that Russian President Vladimir Putin’s war in Ukraine could have costly political consequences back home.

The survey found that 46% of the 167 experts surveyed, who come from academic, non-profit, governmental, and consultancy backgrounds, anticipate Russia’s collapse within the next decade.

The survey found that 40% of those surveyed foresee Russia breaking up internally within the next 10 years because of “revolution, civil war, political disintegration,” or another reason.

Just over a fifth (21%) considered Russia to be the most likely country to become a failed state within the next decade, more than double the next highest choice: Afghanistan.

“Ukraine clearly highlights the possibility of internal problems for Russia, and the possibility that the war itself might have boomerang effects for not only its leadership but for the country as a whole,” Peter Engelke, the Atlantic Council’s deputy director of foresight, told The Financial Times.

Western officials believe that Putin has been weakened by his decision to invade Ukraine, with the Pentagon labeling the war a “massive strategic failure.”

Russia has drained its annual budget, been hit by sanctions, and suffered unexpected battlefield losses over the past 10 months.

A British government source said that Russia could take up to 30 years to rebuild its economic and military strength, according to The Times of London.

The experts surveyed by the Atlantic Council also anticipate major developments elsewhere in the world.

The survey found that 70% of respondents agreed with a statement that China could invade Taiwan within the next decade, echoing a top US admiral’s March 2021 warning that Chinese military action could be coming by 2027.

https://t.co/CHfxjOa1N4

Goldman Sachs Group (GS.N) will start cutting thousands of jobs across the firm from Wednesday, two sources familiar with the move said, as it prepares for a tough economic environment.

Just over 3,000 employees will be let go, one of the sources said, but the final number is yet to be determined. That scale of layoffs would be the largest since the 2008 financial crisis, one of the sources said.

The sources could not be named as the information was not yet disclosed publicly. Goldman Sachs declined to comment.

Bloomberg News reported on Sunday that Goldman would eliminate about 3,200 positions.

Goldman had 49,100 employees at the end of the third quarter, after adding significant numbers of staff during the coronavirus pandemic.

The layoffs are likely to affect most of the bank’s major divisions, but should centre on Goldman Sachs’ investment banking arm, one of the sources said. Wall Street banks have suffered a major slowdown in corporate dealmaking activity as a result of volatile global financial markets.

Hundreds of jobs are also likely to be reduced from Goldman Sachs’ consumer business, Marcus, after it scaled back plans for the loss-making unit, the sources said.

The bank’s chief executive David Solomon sent a year-end voice memo to staff warning of a headcount reduction in the first half of January, two separate sources said. Goldman Sachs declined comment on the memo.

The job cuts come ahead of the bank’s annual bonus payments which are usually delivered later in January and are expected to fall about 40%.

The bank restarted its annual performance review process and staff cuts in September after pausing for two years during the pandemic.

The Wall Street giant typically trims about 1% to 5% of employees each year. These new cuts will come on top of the earlier layoffs.

Global banks, including Morgan Stanley (MS.N) and Citigroup Inc (C.N), have reduced their workforces in recent months as a dealmaking boom on Wall Street fizzled out due to high interest rates, tensions between the United States and China, the war between Russia and Ukraine, and soaring inflation.

Global investment banking fees nearly halved in 2022, with $77 billion earned by the banks, down from $132.3 billion one year earlier, Dealogic data showed.

The total value of mergers and acquisitions (M&A) globally had slumped 37% to $3.66 trillion by Dec. 20, according to Dealogic data, after hitting an all-time high of $5.9 trillion last year.

Banks had executed $517 billion worth of equity capital markets (ECM) transactions by late December 2022, the lowest level since the early 2000s and a 66% drop from 2021’s bonanza, according to Dealogic data.

Despite the slowdown, Goldman’s top dealmakers told Reuters in recent interviews that they are bullish on an M&A recovery in the second half of 2023.

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Wall Street’s main indexes were set to open higher on Monday on optimism around China reopening its borders, while signs of a cooling labor market boosted bets of a slower pace of interest rate hikes by the Federal Reserve.

After being clobbered in 2022 by rapid rate hikes, the benchmark S&P 500 (.SPX) and Nasdaq (.IXIC) snapped a four-week decline on Friday after a moderation in wage increases and a decline in U.S. services activity in December buoyed hopes of a less hawkish stance from the Fed.

“The number of jobs created is working its way down slowly and wages are starting to calm down. Both of those are important for inflation coming under control, without necessarily careening the U.S economy to a recession,” said Art Hogan, chief market strategist at B. Riley Financial.

The highly awaited U.S. Labor Department’s inflation report on Thursday is expected to show some moderation in year-on-year consumer prices in December.

Money market bets show 75% odds of a 25-basis point hike in the Fed’s February policy meeting, with the terminal rate expected just below 5% by June.

Other economic data such as weekly jobless claims and the University of Michigan’s consumer sentiment report will also be in focus this week, as big U.S. banks kick off the quarterly earnings season on Friday.

A slew of Fed officials including Chair Jerome Powell are due to speak this week, with investors parsing their commentary for more clues on the rate-hike trajectory.

U.S.-listed shares of Alibaba Group Holding Ltd rose 5.0% in premarket trading on news that Ant Group’s founder Jack Ma will give up control of the Chinese fintech giant in an overhaul.

Shares of other Chinese firms such as Baidu Inc and Pinduoduo Inc (PDD.O) rose 1.5% and 2.9%, respectively, as a full reopening of China’s borders, since the start of the pandemic, added to bets of a robust recovery in the world’s second-largest economy.

At 8:00 a.m. ET, Dow e-minis were up 103 points, or 0.30%, S&P 500 e-minis were up 16 points, or 0.41%, and Nasdaq 100 e-minis were up 56.75 points, or 0.51%.

Tesla Inc (TSLA.O) climbed 3.3% as the electric-vehicle maker indicated longer waiting times for potential buyers of some versions of the Model Y in China, signaling that recently announced price cuts could be stoking demand in the company’s second-largest market.

Macy’s Inc (M.N) and Lululemon Athletica Inc (LULU.O) dropped 4.7% and 10%, respectively, following dour holiday-quarter forecasts from both the retailers.

As the world looks forward from COP27, the next steps in global climate change action must center on the urgent needs of the global South. Climate change is a global emergency, and in times of emergency, careful consideration must be given to the historical actions that have forged the path to the present. Examining our shared global past is invaluable to establishing a framework in which the international community may justly respond to the climate crises threatening the present and future.

For a vast portion of humanity, the impending threats issued by climate change are already tangible rather than looming potentials. As the sea levels rise, biodiversity rapidly declines, and poverty and displacement ensue, it is worth reiterating that those least responsible for climate change are the worst affected by its cataclysms. This fact is emphasized by an article from Generation Climate Europe, which found the “top 10% of global emitters (771 million individuals) were responsible for about 48% of global CO2 emissions, while the bottom 50% (3.8 billion individuals) were responsible for almost 12% of all emissions” in 2019. Climate change is an all-encompassing issue, yet its impacts and suffering are distributed unevenly and without proportion to culpability. Climate justice in the global South is a pressing matter and one that should not be discarded to the “backburner” of our global priorities. While climate justice was taken at least somewhat seriously at the United Nations COP27 conference, little effort seems to have been made to change the business-as-usual approach to addressing climate change, which inherently furthers climate injustice in the global South.

Inequalities of the Past and Plight of the Global South

The climate crisis is an inevitable consequence of the Western development model: actions governed by a social order that has historically prioritized a growth paradigm. Climate change, and the uncertainty it entails, is the challenge of our time. Yet, its origins can be traced back through the centuries, expressing it as a problem of patterns. Within this context, even actions during colonialism sowed the seeds of the climate crisis, which have noticeably bloomed over the past 50 to 60 years. Important regional and adaptive practices were disregarded and scrubbed from westernized history as colonialism established extractivist relationships and dependence on the global South. During this era, colonial powers effectively reorganized the world’s social order, predicating it on southern subservience to the global North, thereby transforming the flow of energy and resources through an unsustainable and unequal global system. 

In the wake of the globalization project in the 1980s, predatory lending by the global North left global South countries spending significant portions of their GDPs on loan servicing rather than crucial infrastructure, public health, and social services investments that could have increased climate resilience (see Fantu Cheru’s analysis in the African context). Relatedly, neoliberal measures, as Adrian Parr argues, are ineffective responses to the challenges climate change presents. Instead, in this era, western export manufacturing was relocated to global South countries as a means to avoid higher expenses and environmental regulations. Global financial institutions and corporations used their extraordinary powers to manipulate the rules of the game, privileging corporate control and shrinking the power of Southern states. The adverse long-term effects of this world order, including extreme inequality, are numerous, impacting the health, economies, and environments of many marginalized communities. Current approaches to climate change are unjust and disproportionately harm the global South, mirroring the same inequalities of the past. 

Many countries in the global South are already suffering the impacts of climate change, especially those located near tropical areas and associated worsening tropical storms. For example, India suffered historic heat waves this past spring, and Pakistan suffered historic flooding. Pakistan, to be noted, contributes less than one percent of greenhouse gas emissions while being one of the countries most affected by climate change.

Similarly, northern Kenya is facing prolonged droughts, which leave rural areas with greater chances of starvation, and parts of Bangladesh are now underwater due to extreme rain, destroying many homes. Bangladesh’s southwest region is home to more than 18 million people and is no more than seven feet above sea level. Bangladesh is thus described as “ground zero” for climate change. Bangladesh and other countries in similar geographical locations urgently need a climate response, as their coastal position makes them increasingly vulnerable to rising sea levels.

Although some of the increased vulnerability of global South countries is due to their geographic location, the legacy of colonialism and the structural adjustment policies (SAPs) of the globalization project have also greatly contributed to their current vulnerability. The push for climate justice is therefore intertwined with a push for social justice in the global South. Put differently, climate justice is needed to address the disparity between global South and North nations.

Business as Usual and Agricultural Injustice

The COP27 conference has included the unprecedented yet long-overdue creation of a fund to address climate justice in the face of increasing climate-driven catastrophes. This fund, despite issues, could signal an important shift in global perception of the fight against climate change. Although world leaders at COP27 once again emphasized collective actions to achieve climate goals, their reliance mainly on a business-as-usual approach contradicts their commitment to climate justice issues. To be specific, fossil fuels still comprise around 85 percent of global energy. Even so, Philip McMichael and Heloise Weber note that the fossil fuel industry receives up to $1 trillion in annual subsidies, which is over $100 trillion of unburned carbon, and over $10 trillion for the fossil fuel sector’s infrastructure. On the other hand, in the Amazon rainforest in Brazil, one million square kilometers of forest have been cut down or burned since 1978 at a rate of almost 10,000 acres a day.  Forests in Brazil, Africa, and Indonesia are destroyed for resources, contributing to carbon emissions, as well as degrading fundamental ecosystems that play a critical role in reducing the level of atmospheric carbon.

Additionally, the impact of the business-as-usual approach is reflected in the most dominant institutional adaptation activities in the global South. For context, the global South depends heavily on farming and agriculture, and climate change is causing many different native crops to yield a much lower number than they normally would. Rising heat is also an issue for a great variety of crops, and has wiped out many yields over the past decade because of the horrific droughts and minimal water. 

In addition to the ill effects of the climate crisis, the ways in which dominant institutions develop strategies to adapt exacerbate food and water scarcity. Kasia Paprocki (2021) in her Threatening Dystopias: Development and Adaptation Regimes in Bangladesh discusses how elites and rich countries use the rural poor of the global South, particularly in Bangladesh, as pawns to experiment with adaptations to climate change. One such example is the development of the shrimp aquaculture sector. In the face of threats posed by climate change in Bangladesh, the invention of the shrimp exports industry “is seen as critical to the expansion of ‘non-crop agriculture,’ which the World Bank regards as a more productive sector and therefore necessary to the growth of Bangladesh’s economy.” Yet, vast communities of farmers and other rural inhabitants have historically depended on rice agriculture. As certain actors within the development regime intervene and push the transition to shrimp aquaculture, the livelihoods that rely on rice agriculture are threatened and ultimately dispossessed.

Furthermore, increased soil salinity is a major consequence of the shrimp aquaculture industry, which compounds the environmental degradation brought forth by climate change. Industrial agriculture, which uses 80 percent of arable land while feeding only 30 percent of the population, serves the affluent global minority with huge purchasing power, not the population in dire need. Thus, agricultural justice should be a characteristic of climate justice to provide security for the majority of Earth’s inhabitants.

Effective Climate Action Is Just

Effective climate action is and should center on the voices of the historically marginalized people, including indigenous peoples, who best know the land they have lived on for countless generations. For example, an International Institute for Environment and Development report shows that public participatory monitoring in Semarang, Indonesia, has emphasized a “localized understanding of needs.” Such a localized understanding of vulnerability has proven to be successful in improving the adaptive capacity of local communities facing threats posed by climate change. This understanding is necessary worldwide, and climate justice can amplify the voices teaching this worldview. Top-down adaptation in the name of assisting local communities seems to only inflame their problems, as evident in Bangladesh’s shrimp industry, for there is a clear lack of understanding of the community itself or its needs. 

The global South faces a multitude of social injustices that are further exposed and exacerbated by climate change. Major carbon emitters should take accountability for their actions and the harm they have done to the planet. If measures are taken to tend to the global South countries, lessening the injustices they experience, then not only will the people of the global South and the global North reap the benefits, but planetary health will improve too. Moreover, if the conference in Egypt was held to build on previous accomplishments and lay the groundwork for future ambition to address the global challenge of climate change successfully, then global leaders must act swiftly and justly. While the fund created at COP27 is commendable, it will not address all of these issues or accomplish all of these possibilities, but it is a vital part of the nascent movement for climate justice. Actions taken in accordance with the current global order will most likely result in the same outcomes: environmental decay and humanitarian crises. Climate justice will not occur overnight, but it requires a reexamination of the global order to effectively deal with the crisis and injustice unleashed by climate change worldwide.

IMAGE: In this picture taken on September 27, 2022, internally displaced flood-affected people wade through a flooded area in Dadu district of Sindh province. (Photo by RIZWAN TABASSUM/AFP via Getty Images)

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The massive appropriations bill signed by President Biden on Dec. 29, 2022, included, among other riders, language requiring the makers of internet-connected medical devices to reasonably ensure that such devices and their related systems are cybersecure. The legislation grants the secretary of health and human services authority to issue regulations, setting requirements for covered devices to be enforced by the Food and Drug Administration (FDA). 

The measure is, by my reckoning, the first time since the Energy Policy Act of 2005 that Congress has expressly authorized any agency to regulate the cybersecurity of privately owned and operated systems of any kind. It comes not a moment too soon. As one recent survey bordering on the tautological found, the more connected devices a medical facility has, the higher its risk of experiencing a cyberattack. 

Situating Cybersecurity in Existing Regulatory Structures

As I argued when I first wrote about the legislation for Lawfare in June, it offers a promising approach for incremental and sector-specific progress in addressing the widely recognized insecurity of critical infrastructure and products. Among the key features of the bill that recommend it as a model is that it situates cybersecurity within an existing regulatory framework, amending the Food, Drug, and Cosmetic Act to add a new section entitled “Ensuring Cybersecurity of Devices.” This implicitly acknowledges the reality that cybersecurity, despite its significance, is just one risk among many that a regulatory agency must consider and balance in pursuing any mission focused on safety, effectiveness, or reliability in the delivery of a product or service, whether it is health care or drinking water or transportation. 

Also, the legislation implicitly endorses a concept that has been deeply embedded in U.S. cybersecurity policy across administrations: that sector-specific agencies (now called sector risk management agencies or SRMAs) must have the lead in addressing the cybersecurity of entities under their jurisdiction. The FDA already oversees the safety and effectiveness of medical devices, and, as I described in June, it has already issued extensive guidance on the cybersecurity of connected medical devices. This legislation, as it is implemented, will transform that nonbinding guidance from recommendations to actual rules. 

In deferring to the sectoral expertise of existing agencies such as the FDA, however, this approach leaves open the possibility that the rules for different industries will diverge in unjustified ways, given commonalities of both technology and threat. That is where the Cybersecurity and Infrastructure Security Agency, as a non-regulatory body, the national cyber director, and the much-needed Bureau of Cyber Statistics can add value, by developing evidence-based standards that can nudge the SRMAs toward more harmonized (but not perfectly harmonized) requirements based on insights into what does and what doesn’t work.

A Bit Adulterated, but Still Promising

I’m not privy to the sausage-making that produced some differences between the device security bill that passed the House in June on an overwhelming, bipartisan vote and what the Senate included in the omnibus. Surely, industry had a role. The definition of a cyber device subject to regulation was narrowed. The House-passed bill defined a cyber device as one that included software, had the ability to connect to the internet, or could be vulnerable to cybersecurity threats, while the bill as enacted applies to devices that include software, can be connected to the internet, and could be vulnerable to cybersecurity threats. I’d be interested to know how much of a difference that makes; it seems that anything with software will be connected to the internet and vulnerable. And, in any case, under both versions, the secretary of health and human services will have the authority to exempt otherwise covered devices. Also, the House-passed bill would have required device makers to include a software bill of materials (SBOM) in the labeling of the device itself, thus opening device makers to liability for misbranding if the SBOM is inaccurate. In contrast, the enacted version drops the misbranding enforcement tool, requiring only that the SBOM be provided to the FDA. There are other tweaks, but the measure does not seem to have been substantially weakened—though I’d be interested to hear thoughts on this assessment from those more directly involved in negotiating the final language.

Public-Private Partnership and Information Sharing Are Not Enough

I have long argued that many federal agencies have, in their organic statutes, the authority to regulate cybersecurity as an element of their legislated mandates to ensure the safety and reliability of the industries, products, and services they oversee. For decades, however, agencies were reluctant to exercise that authority. Instead, they endlessly repeated the mantras of public-private partnership and information sharing—both essential elements of any cybersecurity strategy but demonstrably inadequate by themselves.

The Colonial Pipeline incident in 2021 changed that to some extent, with the Transportation Security Administration issuing binding rules for pipelines and railroads. But other agencies continue to deny that their safety and reliability authority encompasses the disruptions associated with cyberattacks. They were bolstered in that position by the Supreme Court’s June 2022 decision in West Virginia v. Environmental Protection Agency, in which the Court stated that, “in certain extraordinary cases,” regulatory agencies could not issue rules on “major questions” affecting “a significant portion of the American economy” without “clear congressional authorization.”

Beyond Medical Devices: Think Comprehensively, Act Incrementally

The medical device provision points the way forward: make cybersecurity an express mission of the SRMAs. Departments and agencies, at the urging or direction of the White House, should look for opportunities to add cybersecurity to their organic statutes. In many cases, a cut-and-bite amendment of a few words would be enough. Critically, the FDA provision began to move after the agency expressly requested it in its 2023 budget request. And the measure was advanced by initially being included in a measure specific to the FDA, a bill to reauthorize the agency to collect user fees from drug and device manufacturers seeking product approvals. In 2023 and 2024, the list of must-pass vehicles might be limited to two items: the National Defense Authorization Act and the now-normal, down-to-the-wire omnibus appropriations bill. But, as with the medical device provision, the process would best start in the congressional committees of jurisdiction, whose chairs could argue for the measures’ inclusion in the must-pass bills. 

The Biden administration is expected to finalize its cybersecurity strategy soon. The details remain to be seen, but the strategy is expected, according to Politico, “to endorse a more aggressive approach to regulation for critical infrastructure companies.” With such an endorsement, the alphabet soup of the federal government, departments, and independent agencies—including the Federal Communications Commission for telecoms, the Centers for Medicare and Medicaid Services for hospitals receiving Medicare and Medicaid payments, the Environmental Protection Agency for drinking water systems, and on and on—should acknowledge the cyber risk their sectors face and propose legislation to expressly add cybersecurity to their safety and reliability authorities.

On Dec. 13, 2022, the Israeli Supreme Court published a 51-page judgment in Kohelet Forum v. Prime Minister, providing reasons for its Oct. 23, 2022, decision to greenlight the Israel-Lebanon Maritime Delimitation Agreement. (The agreement was finalized and announced on Oct. 27, 2022.) In its judgment, the court considered and rejected three challenges to the agreement raised by the petitioners: that the agreement involved a transfer of sovereignty over Israeli territory and should have therefore been put to a national referendum; that, due to its status as a caretaker government, the Government of Israel (GOI) was legally barred from concluding the agreement; and that the GOI was required, by virtue of a constitutional usage or custom, to bring the agreement to a vote before the Israeli Knesset. The judgment offers a number of interesting insights on the interplay between international law and Israeli constitutional law, including a first-of-its-kind analysis of the application of a Basic Law, requiring the holding of a referendum in connection with territorial concessions, to maritime delimitation questions.

Background Developments

Israel and Lebanon share a land and maritime border, but the boundary line on land and at sea has remained for many years contentious and mostly undelimited. In 2000, Israel unilaterally demarcated a 7.5-kilometer-long security line perpendicular to the de facto land border on the coast through the placing of 10 buoys (that is, the buoys line), and deployed its navy to prevent vessels from crossing that line in proximity to the coast. In 2010, Lebanon deposited with the United Nations a set of maritime boundary coordinates, representing its claim to maritime zones in the boundary area (referred to below as Line 23 or the Southern Lebanese Line). The following year, in 2011, Israel deposited with the U.N. its own coordinates representing its counterclaim to Lebanon’s coordinates (namely, Line 1, which effectively constituted a seaward extension of the buoys line). The maritime area locked inside the triangle formed by Line 1 (the Northern Israeli Line), Line 23 (the Southern Lebanese Line)_, and the beginning of the Cypriot maritime zone (which is parallel to the Israeli/Lebanese coastline, running approximately 130 nautical miles from that coast) comprises some 870 square kilometers. 

Following over a decade of negotiations, facilitated by U.S. mediation and featuring many delays and interruptions, Israel and Lebanon reached the Oct. 23, 2022, agreement on maritime boundary delimitation. This development took place against two competing plans from Israel and Lebanon. Israel has plans to commence the commercial exploitation of a natural gas field (called Karish), south of Line 23, which nonetheless falls inside an area of the Mediterranean Sea that Lebanon claimed at one stage of the negotiations (when it presented a revised line going considerably beyond the line it deposited with the U.N.). Lebanon has plans to commence exploration of another natural gas field (called Qana) that is north of Line 23 but is potentially traversed by Line 1. According to the agreement, Israel would accept Line 23 but would receive a fixed percentage from the proceeds from the Qana field (a separate agreement was concluded in November 2022 between Israel and the private energy companies involved in the exploitation of the Qana field). As part of the deal, the parties agreed to maintain, until the time in which a land boundary delimitation agreement would be concluded, the status quo in and around the first 5 kilometers of the buoys line, effectively accepting Israel’s security control of the area south of that line. The parties furthermore agreed that the agreement established a permanent and equitable resolution of their maritime dispute. 

The Institute for National Security Studies (INSS) has created a map of the newly agreed-upon maritime order:

 

New Israeli-Lebanese Maritime Border

Image created by The Institute for National Security Studies (INSS). Reprinted with permission.

 

Since the agreement was finalized in the weeks running up to the Israeli general elections, which occurred on Nov. 1, 2022, its conclusion became part of the election conversation. Opposition leader Benjamin Netanyahu (who has since returned to power) accused the GOI of unjustifiably surrendering Israeli maritime areas and economic assets to Lebanon, an enemy state, and to Hezbollah—which Israel and other states consider a terror organization, and which exercises considerable influence on political affairs in Lebanon. By contrast, then-Prime Minister Yair Lapid proclaimed the agreement to be a historical achievement of his government that would increase stability and economic prosperity in the region. 

The Litigation

Following media reports concerning the impending conclusion of the agreement, a number of public interest groups brought petitions in the first half of the month of October 2022 to the Israeli Supreme Court against the GOI, the Knesset, and a number of government ministers, challenging the authority to conclude the agreement. The two initial petitioners—the Kohelet Forum and Lavi Organization (two right-wing civil society groups)—were joined by a group of private citizens and by Itamar Ben Gvir’s Otzma Yehudit (also known as Jewish Power, an extreme right-wing party represented in the Knesset). Their request to obtain interim injunctions against the GOI were rejected by the Supreme Court, and following a televised hearing held on Oct. 20 before a panel of three justices, their petitions were rejected on Oct. 23 by a unanimous decision of the panel of three justices assigned to the case. On Oct. 27, the GOI and Lebanon finalized the agreement. 

The court’s judgment was published on Dec. 13, 2022 (the Oct. 23 decision was announced without an accompanying opinion from the court). It addressed the three main challenges presented by the petitioners: that the agreement involved a transfer of sovereignty over Israeli territory and should have therefore been put to a referendum; that, due to its status as a caretaker government, the GOI was legally barred from concluding the agreement; and that the GOI was required, by virtue of constitutional usage or custom, to bring the agreement to a vote before the Israeli Knesset. In an unusual manner, the three justices divided between them the task of explaining the court’s position on the three questions at issue and expressed agreement with the explanations provided by each other. 

The Inapplicability of the Referendum Basic Law

The first, and probably most interesting, challenge made by the petitioners related to the interplay between the agreement and Israeli constitutional law on the transfer of sovereign territory. As part of an effort by right-leaning members of the Knesset to render it more difficult for the GOI to agree on territorial concessions in future peace deals, the Knesset passed in 1999 a law that was amended in 2010 (the formal title of the law is “Administration and Law Procedures (revocation of application of law, jurisdiction and administration) Law”), providing that a GOI decision to revoke the application of Israeli “law, jurisdiction and administration” with respect to a territory to which it applies must be approved by a majority of at least 61 members of the Knesset and a referendum or, alternatively, by a vote of 80 (out of 120) members of the Knesset. The Knesset reiterated this in 2014 when it passed the Basic Law: Referendum, which repeated the language found in the 2010 law, while affording it with a constitutional status. 

The petitioners claimed that the agreement involved the transfer of sea territory from Israel to Lebanon and that, as a result, it fell under the terms of the Basic Law: Referendum. To make this argument, the petitioners relied on the Territorial Waters Law (1956), which resulted in extension of Israeli law to the 12 nautical miles area adjacent to the coast, and on the Undersea Water Lands Law (1953), which proclaimed the coastal continental shelf as “State territory.” The Attorney General’s Office claimed, by contrast, that maritime areas outside the territorial sea are not part of the sovereign territory of the State of Israel (although Israel has certain sovereign rights in respect of them) and that the northern boundary of the territorial sea has not been conclusively delimited before the agreement was concluded. 

Justice Uzi Vogelman rejected the petitioners’ claims regarding the application of the Basic Law: Referendum to the agreement. He held that the Basic Law was enacted with the specific aim of limiting the power of the GOI to transfer territories in East Jerusalem and the Golan Heights—areas in relation to which Israel clearly and explicitly applied its laws through Knesset legislation and/or GOI decisions. He did not consider the maritime areas found outside Israel’s territorial sea to meet a comparable “clear and explicit application” standard, given the ambiguity of existing legislation and the lack of sovereignty in economic waters (exclusive economic areas and continental shelves) under customary international law. (Note that Israel is not a party to the 1982 U.N. Convention on the Law of the Sea, but it regards most of the convention’s provisions as customary in nature.) Whereas Vogelman was willing to consider the territorial waters as falling under the Basic Law, he accepted the GOI’s position that Line 1 was submitted to the U.N. merely as a negotiating position and not as a conclusive act of demarcation of the outer limit of Israeli territory for Israel law purposes. In effect, he noted that, beyond the first 5 kilometers of the buoys line, Israel did not enforce its laws north of Line 23. Hence Vogelman reasoned that the small territorial sea area affected by the agreement (the area between the relevant segments of the two lines, located 3-12 miles from the coast; a gap averaging 300 meters in breadth) is not de jure or de facto subject to Israeli law. 

The Powers of a Caretaker Government

Israeli Supreme Court President Esther Hayut addressed in her opinion the second challenge raised by the petitioners, pertaining to the powers of a caretaker government. After new elections were called on June 30, 2022, the outgoing government continued to serve as a caretaker government—which under the Israeli public law jurisprudence means a government with limited powers. According to the Supreme Court’s case law, it would be inappropriate for such a government to make appointments or adopt measures in order to bind the next government or to sway the elections. As a result, the court has held that a caretaker government must exercise its powers with moderation and restraint. Still, the government might justifiably—and, at times, even be required to—take measures that serve a vital public interest even before the elections, so as to avoid creating a decision-making vacuum. 

In the case at hand, Hayut accepted the GOI’s position that the conclusion of the agreement before the elections served a vital and time-sensitive public interest. She noted that the government was presented with classified reports composed by Israeli security agencies (which the court also reviewed ex parte, with the consent of the parties to litigation), which identified a unique “window of opportunity” for concluding the agreement in light of political developments in Lebanon (presumably the end of President Michel Aoun’s term in late October 2022) and overriding security considerations (presumably Hezbollah threats to attack the Karish natural gas field, should extraction commence by Israel without an agreement). Against these facts, and in light of the broad discretion that the GOI enjoys in the field of foreign relations and national security (which extends mutatis mutandis to a caretaker government), Hayut held that there were no grounds for judicial intervention. 

Approval of the Agreement by the Knesset

Justice Noam Sohlberg dealt in his opinion with the third objection raised by the petitioners pertaining to the role of the Knesset in approving international agreements. According to Israeli constitutional law, the GOI is competent to sign and ratify international agreements (this is pursuant to the British model, which associates such powers with the prerogatives of the Crown). Under the relevant Knesset and GOI by-rules, there is an obligation to deposit with the Knesset international agreements two weeks prior to their ratification (unless exceptional reasons of urgency or secrecy preclude this). During that time, different Knesset committees and the Knesset plenary may discuss the pending agreement. Still, the GOI has tended to bring important political agreements, such as peace agreements, to a vote of approval before the Knesset. There is some academic literature claiming that this practice amounts to a binding “constitutional usage” or “custom.”

Sohlberg noted that, in the case at hand, the GOI deliberated on whether or not to submit the agreement for Knesset approval and decided against it, citing that the classified reports on which it relied when supporting the agreement would not be available to all Knesset members (they can be presented only in a security-cleared Knesset subcommittee meeting behind closed doors). Under these circumstances, it opted for pursuing the standard two weeks deposit track (which involved, inter alia, a subcommittee discussion). Sohlberg held that, in following this path, the GOI was exercising its lawful discretion. As for the petitioners’ claim that the government should follow past precedents and submit the agreement to the Knesset for approval, Sohlberg was of the view that practices of past governments do not bind the existing GOI (or, in other words, that there is no established legal doctrine of binding custom generated by past parliamentary practices). In any event, he opined that past practice on submitting important agreements to a vote did not generate clear criteria as to what constitutes an “important agreement” that would merit Knesset approval. It is noteworthy in this regard that the 2010 maritime delimitation agreement between Israel and Cyprus was not brought to a Knesset vote. Having found no basis in law for requiring the GOI to submit the agreement to a vote by the Knesset, Sohlberg rejected this part of the petitioner’s case as well.

Judicial Conservatism in Support of Progressive Foreign Policy?

The proceedings in Kohelet Forum represent an interesting reversal of roles. Conservative groups that have often criticized the court for excessive judicial activism, including broad construction of constitutional instruments in ways that limit the power of the legislative and executive branches, have called on the court to do exactly that: to review a decision placed squarely within the government’s power to conduct foreign policy and protect national security. It is also interesting to note that the three justices on the panel acted in unison to reject the petitions, notwithstanding the fact that they have greatly diverged in the past on questions of judicial activism. (Sohlberg is considered among the most conservative justices on the court and Vogelman among the most activist of justices.) Their joint decision seems to underscore that, despite its tradition of expansive judicial review, the court is still apprehensive about interfering with high-stakes foreign policy and national security matters, and does not wish to assume responsibility for any political or security fallouts that might have ensued from the derailing of the agreement. 

The judgment also offers a first-of-its kind engagement with the Basic Law: Referendum, which has not received much attention until now in Israel and beyond. Such limited attention can be explained by the lack of any serious peace talks vis-a-vis Syria or the Palestinians that might result in the transfer of territory currently subject to Israeli law. It could also be explained by the assumption that, if push comes to shove, the GOI will amend or abrogate the Basic Law (a simple majority of 61 out of 120 members of the Knesset may achieve that). The Israel-Lebanon agreement, however, presented a unique case in which it was plausible to argue that a transfer of territory governed by the Basic Law was being contemplated, without there being a realistic option of amending the Basic Law given the collapse of the governing coalition (a factor that can also explain the reluctance to bring the agreement to a Knesset vote). The approach that the Supreme Court took for this agreement—a narrow interpretation of the scope of application of the Basic Law, limiting its application to territories clearly and explicitly subject to Israeli law—may reflect unease on the part of the court with the institution of a national referendum (Israel has never held a national referendum, on any issue), as well as concerns about the implications for the government’s ability to effectively conduct foreign policy and protect national security if it were to operate under an overly tight constitutional straightjacket.

Finally, it is noteworthy that the court conducted its analysis of the legal status of the different maritime areas in relation to which Israel has legal rights in light of customary international law rules on sovereignty rights at sea (reading down the terms of the Undersea Water Lands Law accordingly). This implies that although there is no clear doctrine of interpretive compatibility between Israeli constitutional law and international law, the content of the latter significantly informs the former.

On Friday evening, we had no idea if Kevin McCarthy was going to be elected speaker or not, so Lawfare editor-in-chief Benjamin Wittes sat down with Brookings senior fellow and Lawfare senior editor Molly Reynolds to talk through the options. They talked about why it actually matters if you have a Speaker of the House, how long the House of Representatives can go without one before the government falls apart, and the consequences of the compromises Kevin McCarthy made.

On Sunday afternoon, Ben and Molly sat down again to record an update to their earlier conversation based on the results of Friday night’s vote.